
I \yvv\Xc-A V'cxVxi, 




C^/vCL^v^JL^a. *3“ Cr^^Ccte^T" 


^ Xj k-A/V'V/ y 


BY JSIjiliJjKSli 

SSSAll 


|«|1 





























































































# 














NORTHERN DISTRICT OF CALIFORNIA. 


THE UNITED STATES 

vs. 

CHARLES FOSSATT. 

> « 

-- 


TESTIMONY ON BOUNDARIES. 



Commercial Steam Presses, 129 Sansome Street. 
























UNITED STATES DISTRICT COURT, 


NORTHERN DISTRICT OF CALIFORNIA. 


San Francisco, Aug. 19, 1856. 


On this day, before me, Geo. Pen Johnston, a Commissioner 
of the United States for the Districts of California, duly au¬ 
thorized to administer oaths, etc., etc., came William J. Lewis, 
a witness produced on behalf of the U. S. in case No. 132, be¬ 
ing an appeal from the Board of Commissioners to ascertain 
and settle the Private Land Claims in the State of California, in 
case No. 340 on the Docket of the said Board of Commission¬ 
ers, and was duly sworn and testified as follows: 

Present: The U. S. District Attorney on behalf of the 
United States: A. C. Peachy, Esq., present by request of United 
States Attorney, and A. P. Crittenden, Esq. on behalf of 
claimants. 

Question by the U. S. District Attorney. 

Question 1.—What is your name, age and place of residence? 
When did you come to California ? How long did you reside 
in the county of Santa Clara and what was your public occu¬ 
pation there ? 

Answer 1.—My name is William J. Lewis, I am forty-four 
years of age; I now reside in the city of San Francisco; I 
came to California in June 1849 ; I resided in the county of 
Santa Clara from December 1849 to June 1855; I was County 
Surveyor of Santa Clara county from the 7th of July, 1850 to 
June, 1855. 

Q. 2.—What is your profession; have you made any surveys 
of ranches in this State from the original Spanish or Mexican 
4 title papers and “ diseno” or maps; if yea, state if you are 
familiar with such title papers and the mode of locating the calls 
of the grants and disenos ? 

[The answer to the last interrogatory is suspended to enable 




2 


the Attorney for the claimants to question the witness as to 
his interest.] 

Q.—Have you any interest in the result of this suit ? 

A.—I have none. 

Q.—Have you any interest in the matter in controversy 
in this suit ? 

A.—I have none. 

Q.—Have you ever made a survey of the land embraced in 
this grant, if yea, for whom ? 

A.—I have made such survey ; I made it at the request of 
Capt. Halleck. 

Q.—Were you paid for making this survey, if yea, by whom? 

A.'—I was paid by Capt. Halleck. 

Q.—Have you any claim for further compensation for ma¬ 
king this survey, contingent upon the determination of any 
question which may arise in this suit ? 

A.—I have not. 

[The Attorney for the claimants here objects to the last in¬ 
terrogatory propounded by the U. S. District Attorney on the 
ground that it is not admissable to prove a boundary by the 
opinion of a witness who may consider himself an expert.] 

A.—2. My profession is civil engineering and surveying ; I 
have made surveys of a large number of ranchos in this State 
from the original Spanish or Mexican title papers and “ dis- 
enos” or maps, and I think I possess a good knowledge of the 
mode of locating the calls of the grants and “ discnos.” 

[The Attorney for the claimant here asks the witness what 
paper he has before him to which he refers when he answers 
the question. The witness replies that the paper to which he 
refers are copies of the interrogatories intended to be propound¬ 
ed by the U. S. District Attorney.] 

Q. 3.—Are you acquainted with the land claimed in this 
case, with the original grant to Justo Larios, of which this is 
part ? how long have you known it and to what extent ? 

A. 3.—I am acquainted with the land claimed under the 
grant to Justo Larios; I have seen the original grant to Justo 
Larios, from the Mexican Government; I have known the land 
since September 1850, having at that time made a survey of 
the adjacent rancho of Jose R. Berreyesa, that rancho joins it 
on the eastern sides. 

Q. 4.—Have you made a survey of the land granted to Justo 
Larios, of which this claim is part, if yea, state when ; look at 
the map here shown you marked No. 1, exhibit A. P. C., and 
state who made it, and when, what tract of land it represents, 
and from what data it is made. 

A. 4.—I made a survey of the land granted to Justo Larios 


3 


in December, 1854 and January, 1855; the map now shown me 
was made under my direction; the lithographic lines on the 
map were made by Henry Steinegger, and also all the printed 
portion of the map was made by him; it was made from an 
original map drawn by Yitres Wackenrender; the coloring, the 
numbering of the stations and the explanation of the colors 
and also the letters and lines marked in India ink were executed 
by Yitres Wackenrender; the whole has been done under my 
direction ; the data upon which it was made were the surveys 
marked on the map by numbered stations, surveys along the 
summit and the northern base of the Pueblo hills, a survey 
along the summit of the Laurel hills and along the ridge east 
of the “hacienda,” triangulations to a large number of points 
outside and inside of the boundaries of the ranchos, angles of 
elevation and depression taken to a large number of points 
and from topographical sketches of the features of the country 
taken on the ground at various dates from December, 1854 to 
May, 1855; the tract represented on the map are the ranchos of 
Justa Larios, Berreyesa, the lands claimed by the New Alma- 
den Company and the land adjacent to said ranchos. The map 
now before me is a correct representation of the surveys I have 
made of these ranchos and of the features of the country. 

Q. 5.—State how you surveyed and located the land granted 
to Justo Larios, describe its boundaries as called for bv the 
original grant and diseno, also describe its boundaries as laid 
down on this map, and state whether the boundaries as laid 
down on this map correspond with the calls of his grant and 
11 diseno.” 

[The Attorney for the claimant here objects to the last por¬ 
tion of the last interrogatory, as it is asking merely the opinion 
of the witness.] 

A. 5.—I now read the description of the title from the trans¬ 
script of the original titles on hie in this case, page 20. The 
rancho is there described as being bounded by the Sierra, by 
the Arroyo Seco, on the side of the establishment of Santa 
Clara, and by the rancho of citizen Jose B. Berreyesa, which 
has for its limit from the junction of the Arroyo Seco and the 
Arroyo de los Alamitos, a line running in a southerly direc¬ 
tion along the eastern base of the “ loma ” or low hills situated 
in the middle of the valley, and continued to the Sierra ; it is 
also stated in this description that the land donated is one 
league, a little more or less; it also refers to the diseno. A 
copy of the diseno is also contained in this transcript, fronting 
page 12. I give this description from the Spanish translated 
into English by myself. In the diseno, the junction of the Ar¬ 
royo Seco with the Arroyo de los Alamitos, is not shown. 


4 


The Arroyo Seco unites with the Arroyo de los Alamitos and 
forms the Arroyo de los Capitancillos, about opposite the sec¬ 
ond “ It ” in the word Arroyo, the name of the Capitancillos 
being above the junction improperly applied on the diseno; 
the Arroyo Seco above referred to, is the one which runs 
through the rancho Berreyesa, and is a different Arroyo from 
the Arroyo Seco which forms the western boundary of the 
Bancho Justo Larios; no northern boundary of the Bancho 
Justo Larios is named in the title, but from the diseno it is evi¬ 
dent that it extends at least as far northerly as the Arroyo de 
los Capitancillos; the southern boundary is the Sierra; the 
western boundary is the Arroyo Seco on the side of the estab¬ 
lishment of Santa Clara, and the eastern, the line of Berrey¬ 
esa, already particularly described; the land as located on this 
map, is bounded by the Arroyo de los Capitancillos on the 
north; by a line marked O. I., representing Berreyesa’s west¬ 
ern boundary on the east; by a line marked I. J. K., 46, 45, 
44, running near the foot of the Sierra on the south, and by 
the Arroyo Seco, on the side of the establishment of Santa 
Clara; on the west this tract contains one league of land ; is 
shaded yellow on the map and marked Bancho de Justo Larios, 
(Exhibit A. P. C. is the map of which I speak.) I first made 
a survey commencing at the junction of the Arroyo Seco and 
the Arroyo de los Alamitos, as shown on Exhibit A. P. C., 
No. -., thence following the several courses of the Arroyo de 
los Capitancillos to its junction with the Arroyo Seco on the 
side of the establishment of Santa Clara, thence up and along 
said Arroyo Seco to the base of the mountains at a station 
marked 44, thence along the northern base of the Sierra, from 
station 44 to station 64 at Berreyesa’s eastern line, thence in a 
straight line along the eastern base of the low hills situated in 
the middle of the valley, to the place of beginning. This sur¬ 
vey contained three thousand five hundred and twenty-nine 
acres, or eight hundred and eleven and 27-100 acres less 
than one Mexican league. The statement now filed marked 
A. X., Exhibit No. 2, contains the field-notes of this survey ; 
the line I. J. K., is drawn so as to include between it and the 
southern line of the survey already described, from station No. 
47 to 64, eight hundred and eleven 27-100 acres, so that the tract 
shaded in yellow contains exactly one Mexican league. The de¬ 
ficiency of eight hundred and eleven 27-100 acres might have 
been taken north of the Capitancillos, or a portion of it to the 
north of that Arroyo, and the residue south of the line from 47 
to 64 along the base of the Sierra. I think the boundaries as 
laid down on this map correspond to the calls of the title in the 
original grant, and to the accompanying diseno. The eastern 


5 


boundary of the Rancho Justo Larios as located by me, is a 
straight line running from the junction of the Arroyo Seco and 
the Arroyo de los Alamitos along the eastern base of the low 
hill situated in the middle of the valley, to the Sierra, which 
corresponds with the call of the grant. The western boundary is 
the Arroyo Seco on the side of the establishment of Santa 
Clara, as I have located the grant, and it corresponds with the 
call of the titles ; the northern boundary is the Arroyo de los 
Capitancillos, which is not named in the titles, but it is shown 
in the diseno which accompanies the titles to be included in the 
rancho, or that at least to extend as far northward as the Ar¬ 
royo. 

Examination adjourned until to-morrow, August 20th, 1856 ; 
deposition not signed by consent. 


Examination resumed August 20tli, at 12 o’clock, M. 

W. J. LEWIS, RECALLED. 

Direct Examination Resumed. 

The witness continues his answer to the last question, and 
deposes and says as follows : 

A.'—The southern boundary as located in No. 1, Exhibit A. 
P. C., is the line, or is represented by the line marked I. J. K., 
46, 45, 44, on the northern slope of the Sierra; it corresponds 
with the call of the grant. The tract of land so located and 
shown on No. 1, Exhibit A. P. C., contains one Mexican 
league which is the amount of the land called for by the titles. 

Q. 6.—Did you make another survey of this rancho with dif¬ 
ferent boundaries, if so, describe such survey ? 

A. 6.—I did. Commencing at station 64 on the western 
boundary of Berreyesa’s Rancho, the course of said boundary 
was continued southerlv in the same direction across the 11 Si- 

i/ 

erra del Encino,” or mine ridge, to the Arroyo de los Alami¬ 
tos, at station 65, thence up the most northern branch of the 
Arroyo de los Alamitos to station 90 ; thence to the summit 
of a high ridge or spur of Mount Umunhum at station 95; 
thence descending to a tributary of the Arroyo Seco, which is 
named in the diseno as the Arroyo Seco on the side of the es¬ 
tablishment of Santa Clara, at station 98 ; thence along said 
tributary to its junction with the principal branch of the said 
Arroyo Seco at station 101; thence down and along said Ar¬ 
royo Seco, to station 44 of the survey already described. There 
is included between the line of the survey last described, and 



6 


the southern boundary of the first described survey, from sta¬ 
tion 44 to 64, four thousand five hundred and four acres ; and 
in the tract embraced in this survey, and the survey first de¬ 
scribed there, eight thousand and thirty-three acres, or one 
league and 85-100. 

Q. 7.—What is the character of the country lying between 
the head waters of the Arroyo Seco and the boundary de los 
Alamitos? Also, describe the land at station No. 95, referred 
to in your last answer. 

A. 7.—There is a high unbroken ridge, a spur of Mount 
Umunhum, that forms the dividing ridge between the water of 
the Arroyo de los Alamitos and the water of the Arroyo Seco 
described in the diseno as on the side of the establishment of San¬ 
ta Clara; there is no opening or canon leading from the waters of 
one stream to those of the other. Station 95 is at the summit of 
the ridge, and is one of the lowest points on the ridge ; the spur 
from Mount Umunhum declines from its summit to station 95, 
the crest of the ridge then rises slightly, being considerably 
irregular, then descends again to about the level of station 95, 
then rises rapidly to a peak marked on the map as the peak of 
Mine Hill. My impression is that the peak of Mine Hill is 
three hundred and fifty-eight feet higher than station 95. 

Q. 8.—Describe the character of the country in which the 
Arroyo Seco and the Arroyo de los Alamitos head, and the 
courses of these arroyos, and the character of the country 
through which they flow ? 

A. 8.—Both these arroyos head high up in the Sierra Azul; 
they descend rapidly, and flow through narrow gorges, until 
they escape from the mountains and enter the plains. The 
general course of the Arroyo de los Alamitos is north-wes£- 
ivardly from its head, to about three-quarters of a mile below 
the hacienda shown on No. 1, Exhibit A. P. C., where it leaves 
the mountains; it there makes an elbow, and runs in a west- 
northwest direction to a point where it enters the Arroyo de 
los Capitancillos, at the western boundary of the rancho Ber- 
reyesas; the Arroyo Seco, which is designated on the diseno as 
being on the side of the establishment of Santa Clara, has first 
a northeast direction from its head to Station 101; it then runs 
in a west-northwest direction, separating the Sierra del Encino 
from the Sierra Azul, to near Station 130; thence in a north¬ 
easterly direction, or at right angles to the general course of 
the Sierra to its junction with the Capitancillos; near Station 
130, the Arroyo Seco forms an elbow of about a right angle, 
its previous course being parallel to the general direction of 
the Sierra lying to the north of it, or between the stream and 
the Capitancillos. 


4 


7 


Q. 9.—Identify on the map marked A. P. C. the range of 
kills which, on Jnsto Larios’ diseno, is named Sierra del Encino, 
and which, according to that diseno, is the southern boundary 
of his rancho ? 

A. 9.—It is the range of hills, the northern base of which 
nearly corresponds with the red line marked on the map from 
Station 64 to 47, and that portion of the red line M. L. repre¬ 
sented on the map as the southern boundary of Berreyesas’ 
rancho from M. to its intersection with the Arroyo de los 
Alamitos; on the east it is bounded by the Arroyo de los 
Alamitos; on the south it is bounded partly by the tributaries 
of the Arroyo de los Alamitos from Station 65 to Station 90, 
and partly by the spur connecting the Sierra del Encino with 
Mount Umunkum, say from Station 90 to Station 98, and 
partly by the Arroyo Seco, which has already been described 
as being on the side of the establishment of Santa Clara from 
Station 98 to Station 130; on the west it is bounded by the 
Arroyo Seco, and the valley of the Capitancillos, say from 
Station 130 to Station 47. 

Q. 10.—What is the character of the land on the rancho 
Justo Larios, from the Arroyo de los Capitancillos to the 
boundary indicated by the red lines, from Station 64 to Station 
47, and thence to Station 44 ? 

A. 10.—It is generally level land, interspersed with a few 
isolated low hills on the northern and western part of the 
rancho, and on the southern line there are a number of low hills, 
connected by gaps, or portesuelos, with spurs from the Sierra; 
the topography of the land is correctly represented on the map 
marked A. P. C.; where there are no hills marked on the map 
the land is a plain. 

Q. 11.—Identify on the map A. P. C. such part of the Ar¬ 
royos de los Alamitos and Seco as are laid down on Justo 
Larios’ diseno ? 

A. 11.—The Arroyo de los Alamitos is named the Arroyo de 
los Capitancillos above the junction of the Arroyo Seco, in the 
diseno of Justo Larios; the part of the Arroyo de los Alamitos 
indicated on the diseno of Justo Larios’ corresponds with that 
part of the Arroyo de los Alamitos marked on No. 1, exhibit 
A. P. C. extending from its mouth, at Station “ O ” to about its 
intersection with line “ M. L.” 

The Arroyo Seco, on the side of the establishment of Santa 
Clara, as represented in the diseno, is indicated on the map A. 
P. C. as extending from Station 44 to Station 24 at its junction 
with the Capitancillos; a short distance above Station 44, or 
near Station 130, the Arroyo Seco makes a short elbow, and 
the upper portion becomes nearly parallel with the direction of 


/ 


8 

the Sierra. No such elbow or bend is represented on the 
diseno, but the direction of the Arroyo Seco on the diseno is 
to the eastward of the course of a right line drawn from a 
point where it leaves the Sierra del Encino at right angles to 
the Sierra; this is true of the Arroyo Seco from Station 44 to 
Station 24, as indicated on the map A. P. C., but does not cor¬ 
respond with the direction of the arroyo above Station 44. 

Q. 12.—Give the points of the compass on the diseno of 
Justo Larios ? 

A. 12.—The lomas bajas are represented in the diseno as 
being on the north, the Sierra del Encino on the south, the 
Lindero del Senor Berreyesa on the east, and the Lindero de 
Santa Clara on the west. 

Q. 13.—Which base of the Sierra del Encino is represented 
on the diseno ? 

A. 13.'—It is undoubtedly the northern base, if the rancho 
was intended to include the Sierra del Encino, the part of the 
Arroyo Seco above Station 130, or the great bend would have 
been represented. 

Q. 14.—On which side of the range of hills, marked in 
Justo Larios’ diseno Sierra del Encino, do the Arroyos Seco 
and de los Alamita take their rise ? 

A. 14.—Both of these Arroyos take their rise on the south 
of the Sierra del Encino, as marked on the diseno. 

Q, 15.—State your reasons for saying that the Arroyos Seco 
and de los Alamitos rise to the south of the range of hills 
called on Justo Larios’ diseno as Sierra del Encino? 

A. 15.—On the diseno of Jnsto Larios there are no hills 
represented south of the Capitancillos until we come to the 
Sierra del Encino ; this is one reason, then, why the first ridge 
we come to south of the Arroyo de los Capitancillos should be 
this sierra. Again, the courses of the Arroyos as represented on 
the diseno north of the Sierra del Encino correspond in general 
direction with the courses of the arroyos from the first range 
of mountains south of the Capitancillos to the Capitancillos; 
the Sierra del Encino is also a part of a great range of moun¬ 
tains, known as the Santa Cruz Mountains. 

Q. 16.—Have you filed notes of the second or additional 
survey you made ; if so, please produce them ? 

A. 16.—I have them. 

[The filed notes are now produced, and marked A. Y., Ex¬ 
hibit No. 3, and annexed to this deposition.] 

Examination adjourned until to-morrow, August 21st, 1856. 
Deposition not signed by consent. 


9 


Examination resumed August 21,1856, at 11 o’clock A. M. 

WILLIAM J. LEWIS RECALLED. 

Cross-Examination.—Questions by A. P. Crittenden 
Esq., Attorney for Claimants. 

Q. 17. When did you first go to San Jose ? 

A. 17.—Near the last of November, 1849. 

Q. 18.—Have you lived there ever since? 

A. 18.—No, I have not. I resided in and within three miles 
of San Jose until June, 1855, and from that date to the present 
in the city of San Francisco. 

Q. 19.'—How far did you live from the tract of land about 
which you have testified ? 

A. 19.—About eight miles from the angle of the rancho near¬ 
est to San Jose. 

Q. 20.—Do you understand the Spanish language ? 

A. 20.—I have a partial knowledge of the Spanish language, 
but do not consider myself a Spanish scholar. 

Q. 21.—Do you speak Spanish? 

A. 21.—I do, sometimes. I can speak it as well as can be 
judged from my previous answer. 

Q. 22.—Can you speak it well enough to carry on conversa¬ 
tion with the native Californians, and to understand accurately 
what they say ? 

A. 22.—I can generally speak it so as to make myself under¬ 
stood, and also can generally understand what they say. I can 
read it better than I can speak it. 

Q. 23.—When did you learn the language ; before going to 
San Jose, or after your arrival there ? 

A. 23.—I learned a very little of the language prior to leav¬ 
ing the States in 1849; but the greater part of what I know of 
it I learned on the Isthmus, and at Panama where I was de¬ 
tained upwards of three months on my way to California, 
during two months of which time I boarded in a Spanish 
family. 

Q. 24.—How long has it been since you have understood the 
language well enough to converse in it ? 

A. 24.—I learned the language well enough to converse in 
it before I left the Isthmus, and at that time could speak it 
much better than I can at present in consequence of recently 
having little intercourse with the Spanish population. 

Q. 25.—While residing in the county of Santa Clara did you 
associate much with the native Californians? 

A. 25.'—In making surveys during the earlier part of my 
residence there I associated with, or was therein amongst them 



10 


a good deal, the native population forming a large proportion 
of the people of San Jos6 at that time; I frequently conversed 
with them; latterly I have had but slight intercourse with them 
in consequence of the predominance of the American popula¬ 
tion. 

Q. 26.—Have you been pretty well acquainted with the peo¬ 
ple of Santa Clara county since the time you went there to 
live ? 

A. 26.—I have been. 

Q. 27.—About what proportion of them were native Califor¬ 
nians speaking only the Spanish language when you first went 
there ? 

A. 27.—I should think two-thirds of the residents of the 
county. 

Q. 28.—Amongst those speaking the English language were 
there many who had been long in California ? 

A. 28.—There were very few indeed, and scarcely any of 
them that could not speak the Spanish language. 

Q. 29.—Were there any amongst them who were in Califor¬ 
nia prior to 1843, so far as you know ? 

A. 29.—There were none so far as I know. 

Q. 30.—What ranchos in this State have you surveyed from 
the original Spanish or Mexican title papers and maps ? 

A. 30.—I have surveyed the ranchos of San Ysidor, belong¬ 
ing to or claimed by Gilroy and others, Las Animas, claimed 
by Sanchez and others, El Rinconado de San Francisquito, 
claimed by Antonio Ma. Mesa, Los Berreyesas, claimed by Ma¬ 
riano Castro, La Canada de los Capitancillos—or San Yicente— 
claimed by Berreyesas, Los Positos, claimed by Livermore, El 
Ulistan, claimed by Hoppe and Watson, La Barranca Colo¬ 
rado, claimed by the children, heirs of Judge Ide, Los Sancos, 
claimed by Chard, San Antonio, claimed by the heirs of Prado 
Mesas, El Yito, claimed by the heirs of Alviso, Los Coches, 
claimed by Antonio Sunol; La Canada del Rincon del Rio San 
Lorenzo de Santa Cruz, claimed by Hensley and others ; these 
are all the ranchos I now recollect having surveyed. 

Q. 31.—What was the character of the surveys which you 
made of these Ranchos; were they mere private surveys made 
at the request and under the instructions of the claimants, or 
were they official surveys and under the authority of the 
United States, and if the latter, were they approved, and if so, 
by whom and how ? 

A. 31.—Official surveys are only made under the authority 
of the L T nited States government when the title to the land has 
been finally confirmed. I have made one such survey, viz. of 
the Rancho last named in my answer to the previous question, 


11 


which was surveyed by me as Deputy United States Surveyor 
under instructions from Col. J. C. Hays, Surveyor General of 
the United States for the State of California. The ranchos 
Las Peritas, La Barranca Colorada and Las Saucos were sur¬ 
veyed by me in the capacity of Deputy United States Sur¬ 
veyor, under instructions from Col. Hays, and all the surveys 
made as Deputy United States Surveyor, have been approved 
by the Surveyor General; the last three surveys were prelim¬ 
inary and not final surveys; none of the other surveys are 
official, but were made on the application of parties interested, 
and were paid for or agreed to be paid for by them. Some¬ 
times the boundaries for these last surveys were left entirely 
to my discretion by the parties interested; in other cases the 
land was .surveyed as claimed by them. 

Q. 32.—What is the name of the tract of land about which 
you have testified as delineated in the map marked No. 1, 
"Exhibit A. P. C. ? 

A. 32.—It is called Rancho de los Capitancillos. 

Q. 33.—What is the meaning of Rancho de los Capitancil¬ 
los, translated into English ? 

A. 33.—Rancho of the little Captains. 

Q. 34.—Do you know from what the name was derived ? 

A. 34.—I do not; I’ve heard but I’ve forgotten. 

Q. 35.—Did you make no inquiry upon the subject previous 
to undertaking to locate the grant? 

A. 35.—I had known the name since September, 1850, but 
the explanation which was then given me was in connection 
with some trivial circumstances—was not altogether satisfactory 
to me at the time, and I think had no connection with the 
boundaries or survey of the land further than that this rancho 
was a part of the valley which bears the name of the Canada 
de los Capitancillos, that valley includes the ranchos of Justo 
Larios and Berreyesa. 

Q. 36.—Did you never hear it stated, as a fact well known, 
among the old residents of the country, that that tract of land 
took its name from the circumstance that several Indian chiefs 
lived upon it, and had a rancho, or establishment, upon the 
stream which you have marked upon No. 1, Exhibit “A. P. 
C.,” as the Arroyo Seco, and above the bend, and somewhere 
between Station 100 and 133? 

A. 36.—I do not recollect that I ever heard the circum¬ 
stance stated, and I do not see that that affords an explanation 
of the name. 

Q. 37.—If a particular portion of the tract was actually occu¬ 
pied by the Indian chiefs, known as los Capitancillos, might it 
not explain how the name came to be given to a larger tract of 


12 


Rancho de los Capitancillos, and would not tlie location of the 
establishment of the Indians be a material fact in determining 
the location of the whole tract of land, which took its name 
from that establishment? 

[The Attorney on behalf of the U. S. objects to this inter¬ 
rogatory, on the ground that it seeks to establish, by parol tes¬ 
timony, boundaries different from the calls of the grant and 
the diseho.] 

A. 37.—If a particular portion of the tract was actually 
occupied by the Indian chiefs, and known as “Los Capitancil¬ 
los,” it affords a satisfactory explanation how the name came 
to be given to the larger tract, known as the Rancho de los 
Capitancillos. It does not strike me that the location of the 
establishment of the Indians was necessarily within .the tract, 
unless such location had been marked on the diseho, was within 
the limits of the diseho, or was the residence of the proprietor, 
to whom the land was granted, at the time the grant was made. 
In the latter case, it would afford a strong presumption that it 
was intended to be included in the grant, but not sufficient to 
authorize the extension of the land entirely beyond the limits 
of the diseho? 

Q. 38.—In what county is the Rancho de los Capitancillos 
situated ? 

A. 38.—In the County of Santa Clara. 

Q. 39—Who employed you to make the surveys of that 
Rancho, about which you have principally testified ? 

A. 39.—Captain Halleck. 

Q. 40.—Who is Captain Halleck? where does he reside? and 
in what business is he engaged? 

A. 40.—Captain Halleck is a lawyer residing in the City of 
San Francisco—a member of the firm of Halleck, Peachy & 
Billings. 

Q. 41.—Do you know whether he employed you to make 
this survey on his own account, or on account of others; if the 
latter, for whom ? 

A. 41.—I am informed that Captain Halleck is Director 
General of the Almaden Mining Company, and the survey was 
made by the advice of Mr. Peachy, one of the Attorneys for 
the Company. Captain Halleck employed me to make the sur¬ 
vey, which is shown on the map, marked No. 1, Exhibit “A. 
P. C.,” to be used in and about the business of the mine, and 
I was paid for making the survey by Captain Halleck (I am 
informed) on behalf of the Company. 

Q. 42.—Who were with you when you made this survey of 
the Rancho de los Capitancillos? 

A. 42.—The tag-man, chain-man, and ax-man were with 


13 


me during the whole survey, and assisted me in making it. I 
am unable to give their names. Mr. Peachy was also with me, 
once or twice, and remained about an hour each time. Mr. 
Young, a Superintendent of the mine, brought us our dinners 
on two or three different occasions. I do not recollect whether 
Captain Halleck was on the ground or not at any time, nor do 
I recollect that any other person was with us. 

Q. 43.—Were any papers furnished you, by which you were 
to be guided in making the survey; if yea, what papers, and 
by whom? 

A. 43.—I had a copy of the diseno furnished me by Mr. 
Peachy; I also saw and read the title papers, or grant, accom¬ 
panying the expediente at the office of the Surveyor General. 

Q. 44.—What diseno and grant do you refer to? 

A. 44.—I refer to the diseno, a copy of which appears in the 
transcript from the Board of Land Commissioners in this case, 
and about which I have heretofore testified in my direct exam¬ 
ination ; and to the grant contained in the expediente of Justo 
Larios, the grant from which I read in my direct examination, 
appears to be an exact copy of the one which I examined while 
making the survey, with the exception of two errors in spelling. 

Q. 45.—Had you no other papers with you on the ground, 
than the diseno of Justo Larios? 

A. 45.—I had none that I recollect. 

Q. 46.—How long was it before you commenced this survey 
that you examined the grant in the Surveyor General’s Office ? 

A. 46.—But a few days. 

Q. 47.—Hid you trust to your recollection of the grant for 
the description it contained of the land? 

A. 47.—I trusted to my recollection, with the exception of 
the assistance derived from the copy of the diseno I had with 

me. * 

Q. 48.—Before commencing the survey, did you make any 
inquiries in regard to the names or designations of natural ob¬ 
jects in that vicinity ? if yea, of whom ? 

A. 48.—I had been familiar with the names of the Arroyos 
de los Capitancillos, the two Arroyos Seco, and the Arroyo de 
los Alamitos, for several years. I also was familiar with the 
name and position of the “lorna,” marked on the map. I in¬ 
quired of several persons of the proper translation of the ex¬ 
pression “falda de laloma,” and I examined the dictionary of 
the Spanish Academy on that point. I am satisfied I have 
given to it the correct construction. I also have known the 
Pueblo Hills, the Banch of San Juan Bautista and the promi¬ 
nent points generally represented on the map ; having resided 
in the county for several years, these points became known to 
me prior to the time when I commenced the survey. 


14 


Q. 49.—Look at the map, marked No. 1, Exhibit A. P. C., 
and designate at what point you commenced your survey ? 

A. 49.—I commenced the survey at a point marked “ 0,” at 
the junction of the Arroyo Seco and the Arroyo de los Ala- 
mitos. 

Examination adjourned until to-morrow, August 22d, 1856. 
Deposition not signed by consent. 


Examination resumed, August 22d, 1856, at 10 o’clock, A.M. 


WILLIAM J. LEWIS, RECALLED. 

Cross-Examination Continued.'—Questions by H. P. Crit¬ 
tenden, Esq., Attorney for Claimants. 


Q. 50.—Commencing at the point marked “0,” on the map 
marked No. 1, Exhibit A. P. C., how do you run the eastern 
boundary line of the Rancho de los Capitancillos according to 
your ideas of its location ? 

A. 50.—It is run from the point “ 0 ” in a straight line to the 
eastern base of the hill, situated in the middle of the valley, to 
the point marked “Falda de laLoma,” on the map marked No. 
1, Exhibit A. P. C.; and this straight line is continued to a 
point marked “I,” on the northern slope of the most northern 
range of mountains on said map. 

Q. 51.—Why do you stop that line at the point marked 
“I”? 


A. 51.—Because the rancho extends eastwardly and west- 
wardly from the line “0. I.,” already described, to the Arroyo 
Scco on the west, and the rancho extends to the north at least 
as far as the Arroyo de los Capitancillos; and it could not ex¬ 
tend more southwardly than the line “ I. J. K. 46, 45, 44,” of 
which u I ” is the southern termination of the line “ 0. I.,” 
without including a greater quantity of land than one league; 
and also because I think the diseno shows that the southern 
line runs near the northern base of the Sierra. 

Q. 52.—Where is the point “I ” situated in reference to the 
Sierra ? 

A. 52.—It is situated on the northern slope ot the Sierra, 
about two-fifths of a mile from its base. 

Q. 53.—In locating the eastern line “ 0. I.,” what are you 
governed by, the diseno, or the description contained in the 
grant ? 

A. 53.—By the description contained in the grant, the east¬ 
ern line, as marked in the diseno, evidently represents the line 



15 


of Berreyesa as running much further to the eastward than the 
description contained in the grant; but the description in the 
grant fixes positively, for the eastern boundary, the line run¬ 
ning from the junction of the two arroyos Seco, and de los Ala- 
mitos, by the falda de la Loma.” 

Q. 54.—Then, in regard to the eastern boundary line, you 
disregard the diseno, and consider it as controlled by the grant ? 

A. 54.—That is true. 

Q. 55.—According to the grant, how far is that eastern line 
which starts at the point “ 0 ” and passes by the eastern base 
of the “loma,” to extend? 

A. 55.—To the Sierras ? 

Q. 36.'—Then you stop at the point “I ” because you have 
reached the Sierra? 

A. 56.—Yes, and for the other reasons heretofore given. 

Q. 57.—In your opinion, does not that line strike the Sierra 
before reaching the point “ I ” ? 

A. 57.—Yes, it strikes it at the point marked 64 on the map; 
it strikes the base of the mountain there. 

Q. 58.—Then, from 64 to “I” your line is outside of the 
grant, is it not ? 

A. 58.—I think that a fair construction of the title would 
allow it to come up a short distance on to the spur of the Sierras, 
that the line I. J. K. may be regarded as the most southern 
location of the southern line of the grant, and the red line, from 
64 to u K,” as the most northern location of the southern line 
of the grant; in the northern location, the deficiency in 
quantity would be made upon the north of the Arroyo de 
los Capitancillos: consequently I do p.ot think the portion 
of the line from 64 to “ I ” is necessarily outside of the grant. 

Q. 59.—When a sierra is given as one of the boundaries of 
a tract of land which you were called on to locate, would you 
take the base or the top of the sierra or any intermediate line 
as the true boundary line ? 

A. 59.—In those surveys that I have made in California, I 
have generally taken the base of the sierra where the sierra 
was called for as a boundary, unless the title called especially 
for the crest of the sierras. Sierras generally throw out spurs 
of mountains extending irregularly into the plain or lower 
country, and the base of a sierra is, in consequence, a some¬ 
what indefinite line, as it is difficult to say when the spurs 
of the sierra became low enough to cease to be regarded as a 
part of the sierra, and to be properly classed as “lomas;” such 
for example is the case in the land included between the line 
“ I. J. K.,” and the red line from “ K ” to 64. In the locations of 
grants, all the conditions of the grant and diseno are taken into 


16 


consideration, and the quantity of the land granted determines 
the positions of doubtful lines, which can, with propriety, be 
placed in position to give the exact quantity of land called for 
in the title. I would not take an intermediate line, and have 
never done so in any survey which I have made ; an interme¬ 
diate line, I mean a line running higher on the slope of the 
mountain than one which would cross such spurs of the sierra 
as might be denominated “lomas.” 

Q. 60.—Do you mean to say, where a call is for a sierra, you 
would take the base, unless it was necessary to take some other 
line, in order to make out the quantity; and that, in this last 
case, you would run the line higher or lower, so as to give the 
quantity called for ? 

A. 60.—I did not mean to say any such thing; but I meant 
to say that I would follow the base of the sierra, and that the 
only question was, as to where was the base of the sierra, which 
is a matter of some doubt, in a broken country; and that when 
such doubt exists, I would use the quantity called for in the 
grant to assist me in ascertaining what land was intended to 
be granted, and how far the grantor intended the grant should 
extend. 

Q. 61.—If, in this case, it had been your intention to deter¬ 
mine as accurately as possible the base of the sierra, where 
would you have run the lines—not taking the question of 
quantity into consideration at all ? 

A. 61.—1 would have run the line fiom station 44 to 64, 
marked in the map No. 1, Exhibit “A. P. C.,” and did run it 
for that purpose. This line is marked in red, from Station 47 
to 64? 

Q. 62.—In locating this land, with the grant and diseno before 
you, which boundary line would you first establish, and why? 

A. 62.—The order of the calls, as named in the title is first, 
the Sierra; second, the Arroyo Seco, on the side of the estab¬ 
lishment of Santa Clara; third, the western boundary of Ber- 
reyesa; fourth, the contents of land ; and fifth, the diseno. 
The two best defined lines are the western and eastern bounda¬ 
ries—the Arroyo Seco being the second calls, and the Bancho 
Berreyesa, the third in the titles. The Sierra is the first, and 
preference should have been given to it, were it not that the 
base of the Sierra is not so capable of absolute determination as 
the second and third calls in the titles. The northern boundary 
must be determined solely by reference to the quantity of land 
desired, and the three other boundaries called for by the grant. 
There are two lines of nearly equal value. In determining 
the location, the Arroyo Seco has preference over the eastern 
boundary of Berreyesa’s rancho—not only because first named 


17 


in the titles, but because more definite, indeed absolutely so; 
while the eastern line has a small degree of uncertainty, in 
consequence of the difficulty of determining the exact position 
of tho “falda de la loma,” the ground being somewhat inclined 
from that to the Arroyo de los Alamitos, and a small difference 
in the location of that point would make a much greater differ¬ 
ence at the southern extremity of the Berreyesa boundary. 

Q. 68.—Then you would first run the western boundary, 
then the eastern boundary, then the southern boundary, and 
be governed in the location of the northern boundary by the 
diseno, and by the quantity called for in the grant. Is that 
what you mean ? 

A. 63.—That is the order in which I would give the lines 
and calls the preference : it is substantially the mode in which 
I would survey the land, the variations in the order of actually 
running the lines on the ground being only made as a matter 
of personal conveniences, and to avoid traveling across the 
rancho unnecessarily. 

Q. 64.—In what order would you actually run the lines on 
the ground? 

A. 64.—I would commence at the junction of the Arroyo 
Seco with the Arroj^o de los Capitancillos, at Station 24; I 
would run that which is the western line first; I would run a 
line at the base of the Sierra, which is the southern line, 
second; I would run Berreyesa’s western, which is the eastern 
boundary of this rancho, third; I would then run a line 
along the Arroyo de los Capitancillos to the point of beginning, 
calculate the area of the survey; if there was a deficiency in 
quantity, I would take it to the north of the Capitancillos, 
unless I was satisfied that the southern line might admit of 
being therein further south. If there was an excess of quantity, 
I should cut it off from the least valuable part of the land, as I 
consider that the ranchero is entitled to select the good land 
within his boundaries not exceeding the contents of his grant. 

[The attorney on behalf of the United States here objects 
to the latter portion of the last answer, which expresses the 
opinion of witness as to the rights of claimants under Mexican 
grants to make selections of land within their general limits.] 

Q. 65.—How would you ascertain which was the least valua¬ 
ble portion of the land, and how that portion should be cut 
off'? I mean, would you determine it yourself, or leave it to 
the claimant ? 

A. 65.—In making a final survey for the United States, I 
should leave it to the claimant; I would not feel authorized 
to leave out his house and improvements, which he occupied at 
the time the grant was made. 

2 


18 


[The attorney on behalf of the United States objects to the 
foregoing last question and answer, for the reasons assigned to 
last interrogatory previously objected to.] 

Q. 66.—In making a survey, not a final survey for the 
United States, but to locate the land according to your own 
ideas as to how it should be located, in what way would it be 
determined in such a case, which was the least valuable portion 
of the land? 

[Same objections by the U. S. Attorney for the last inter¬ 
rogatory foregoing] 

A. 66.—If practicable, I should consult the ranchero; if not, 
I should exercise my own judgment as to the value of the 
land. 

Q. 67.—In your opinion, when there is a greater quantity of 
land within the boundaries than that which is specified in the 
grant, has the grantee the right to designate in what part of 
the tract he will take the quantity designated, subject only to 
the restriction you have mentioned, that his improvements 
shall be included ? 

[Objected to by attorney on behalf of United States, for the 
reasons last assigned.] 

A. 67.—I think he has, only that he must take it in a com¬ 
pact form, and not in isolated portions. 

Q. 68.—In this case the line of the base of the hills, which 
you call the sierra, may be determined with considerable 
accuracy, may it not, and has it not been so determined by you 
the line marked on map “No. 1, Exhibit A. P. C.,” 44; 
Iv. 64 ? 

A. 68.—I think so. 

Q. 70.—Is there not some inconsistency between two of the 
answers which you have made, in one of which you say that 
if there were a surplus in this grant, you think the grantee should 
have the right to select his land, subject only to the restriction 
that his improvements should be included; and in the other, 
that you consider the western, southern, and eastern boundaries 
as determined by the grant and diseno as being the proper 
boundaries, and would fix the northern boundary by reference 
to the diseno, and the quantity called for in the grant ? 

A. 70.—I see none, because there can be no excess, inasmuch 
as there is no northern boundary named in the grant; if there 
had been included more land than called for, making the 
Capitancillos the northern boundary, the diseno would have 
conflicted with the grant; but such was not the case, and there¬ 
fore, I believe my answer to have been entirely correct. 

Q. 71.—In locating a tract of land, would you always confine 
the grantee to the exact quantity named, and reject the surplus 
whatever might be the apparent intention of the grant ? 



19 


[Objected to by tbe attorney on behalf of the United States 
for the objections last assigned.] 

A. 71.—I would in all cases, except where judicial posses¬ 
sion had been given by the Mexican government to the ranchero 
prior to the acquisition of the country by the United States. 

Q. 72.—If all the boundary lines of a grant are clearly 
designated in the grant and diseno, and do not include the 
quantity named in the grant, would you in locating it consider 
yourself authorized to go outside of the boundary lines in 
order to make up the quantity ? 

A. 72.—I would not. 

Q. 78.—What is this grant to Justo Larios; is it a grant of 
all the land within certain designated boundaries, or a grant of 
one league of land without being confined to boundaries, or a 
grant of one league, if so much is contained within certain 
designated boundaries ? 

A. 78.—It is a grant of one league, a little more or less, with 
the boundaries on the east, west and south defined, and with 
the northern boundary undefined. 

Q. 74.—Then, if upon running the western, southern and 
eastern boundaries according to the grant, there is found to be 
a deficiency of eight hundred and eleven 27-100 acres, how is 
that deficiency to be made up ? 

A. 74.—If by connecting the northern extremities of the east¬ 
ern and western boundaries and you find between that and the 
sierra an amount of land 811 27-100 acres less than one league, 
the deficiency would be made up by producing northward the 
eastern and western boundaries sufficiently for to include be- 
between a line connecting their extremities and the line already 
described, the deficiency of 811 27-100 acres. It very fre¬ 
quently is the case in Mexican grants, that only a small part of 
a boundary is given, enough merely to fix the extension of the 
rancho in a particular direction, sometimes only a tree, or a 
lake, or a house, on a single line or boundary. There is, there¬ 
fore, nothing in this grant to prevent the extension of the 
eastern and western boundaries northward as suggested in the 
first part of this answer. 

Q. 75.—The mode you have given in your answer, in the 
last cross-interrogatory, is a proper one, is it not, of making 
good the deficiency in quantity, if that deficiency exists and 
can be made good at all ? 

A. 75.—I think so. 

. Q. 76.—Then it is not the proper mode of making good that 
deficiency, to change the southern line designated on map 
marked No. 1, Exhibit A. P. C., “ 44, K. 64,” which line you 
have testified has been fixed by the grant, and can be, and has 
been located with considerable accuracy ? 


20 


A. 76.—The line designated was fixed with considerable 
accuracy, but there is room for a difference of opinion as to the 
base of the sierra, to the extent of the difference between this 
line and the line “ I. J. K.,” the nature of the ground gives room 
for this margin. The line “ I. J. K.” is the most southern 
location, and was regarded as the one most favorable to the 
grantee. I think there would be no impropriety taking the 
line “44, K. 64” as a southern boundary. Indeed, on con¬ 
sideration, I should give that line the preference, and make up 
the deficiency in quantity north of the Arroyo de los Capitan- 
cillos. 

Q. 77.—Then you do not think it the proper mode to make 
up the deficiency by throwing the line marked “44, K. 64,” 
further south ? 

A. 77.—I do not think it absolutely improper or unallowable 
to throw it a little further south, but I consider it more proper 
to take it for the base of the sierra and southern boundary of 
the rancho; no two surveyors would probably run the base of 
the sierra in precisely the same place. 

Q. 78.—Did you not run the line 64 K. before you ran the 
line “J. K.”? 

A. 78.—I did, and I ran it also for the base of the sierra. 

Q. 79.—If you were making an official survey for the United 
States, and were running the line to mark according to the best 
of your judgment, the base of what you call the sierra, would 
you not run it as you have done it in the line “ 64, K.”? 

A. 79.—I would. 

Q. 80.—Then, according to the best of your judgment, point 
64, and not the point “I,” is the point at which the eastern 
boundary line strikes the base of what you call the sierra ? 

A. 80.—It is. 

Q. 81.—You have stated that the northern boundary of this 
tract of land is not determined by the grant and diseno; please 
to look at the diseno and the words of description in the grant 
and say whether, upon reflection, you are not in error upon 
that point? 

A. 81.'—I have examined the grant and diseno, and do not 
discover any error. 

Q. 82.—Please give an exact translation from the grant, of 
the words which determine the eastern boundary of this land ? 

A. 82.—I give it as follows: With the rancho of the citi¬ 
zen Jose Reyes Berreyesa, which has for its limits the angle 
which is formed by the Arroyo Seco, and that of the Alamitos 
in a southerly direction to the base of the low hill, situated in 
the center of the valley to the east, until it comes to the sierra. 

Q. 83.—Would that line produced northward be running 
southward from the starting point ? 


21 


A. 83.—It certainly would not. 

Q. 84.—What is the meaning of the word angulo or angle ? 

A. 84.—It means a corner or the junction that is formed by 
two lines, either straight or curved, and in geometry the inclina¬ 
tion of these lines. 

Q. 85.—What name has the stream or arroyo formed by the 
junction of the two arroyos designated* on map marked No. 1, 
Exhibit “ A. P. C.,” as Arroyo de los Capitancillos and Arroyo 
Seco below that junction? 

[The attorney on behalf of the United States objects to this 
last interrogatory, on the grounds of irrelevancy.] 

A. 85.—It is called the Arroyo de San Jose de Guadalupe. 

Q. 86.—If the Arroyo de los Capitancillos is not the northern 
boundary, but you can cross that arroyo for the purpose of 
making an addition to the tract in order to give the full 
quantity of land called for in the grant, would that addition 
answer the description in the grant; would it be bounded on 
the west by the arroyo designated as the Arroyo Seco; would 
it be bounded on the east by the line of Berreyesa, which ter¬ 
minates at the point formed by the junction of the two creeks, 
or would it be bounded by tlie stream formed by the junction 
of those two creeks, the Arroyo Seco and Alamitos ? 

A. 86.—It would not; neither would any small portion of a 
tract of land be bounded by lines given for the whole tract; the 
creek formed by the junction of the Arroyo de los Alamitos 
and the Arroyo Seco would form the southern boundary of the 
tract added to make up the quantity of land; the boundary 
on the west would be the extension of the general course of 
the Arroyo Seco, and the boundary on the east would be the 
extension northward of Berreyesa’s western boundary, and it 
would be bounded on the north by a line along the Pueblo 
hills parallel to a straight line drawn from Station 0 to Station 
24. 

Q. 87.—From the fact that this tract of land is bounded on 
the east by a line terminating at the junction of two streams, 
is there not a presumption that the stream formed by the junc¬ 
tion of these two was intended to be the northern boundary of 
this tract, especially when it is considered that there is nothing 
either in the grant or diseno to show that the tract extended 
across the stream, and that if it were to cross the stream, it 
would no longer be bounded either on the east or the west by 
the lines which are declared in the grant to be its eastern and 
western boundary ? 

A. 87.—It is not certain that the junction of the Arroyo de 
los Alamitos and the Arroyo Seco is the northern termination 
of Berreyesa’s boundary, Berreyesa’s boundary on the east 


22 


being the Pueblo Hills; the Pueblo Hills are also represented 
on the diseno, but there marked “ lomas bajas,” or low hills. 
It is not certain from the diseno whether the northern boundary 
of the rancho did or did not extend to the “ lomas bajas,” 
or low hills, as they generally extend nearly down to the 
Capitancillos; no large amount of land could be included be¬ 
tween their southern base and the Capitancillos, but if a line 
along the summit was taken, it would include between that 
and the Arroyo de los Capitancillos probably a little more 
than would make up the required quantity ; the presumption 
from the wording of the grant, and from the diseno, is, that it 
was intended to make either the Arroyo de los Capitancillos, 
or a line a little to the north of it, the northern limit of the 
rancho; most probably, I think, to include the little valley be¬ 
tween that and the bases of the “lomas bajas.” My reason for 
thinking so is, that the land to the north of the “lomas bajas” 
is claimed by the proprietors of Santa Teresa rancho. 

Q. 88.—Even if this tract of land did cross the Arroyo de 
los Capitancillos, and extend to the “ Lomas Bajas” delineated 
on the diseno, there being no call in the grant for the top of 
the hills as the boundary, would not the line of their base be 
taken as the boundary ? 

A. 88.—I think a line following generally the base of the 
low hills would in that case be taken as the boundary, if by 
doing so, the required quantity of land could be obtained. I 
think the grantee entitled to one league of land, and the three 
other boundaries being fixed, he has a right to go northward 
until he obtains the quantity of land granted to him. unless he 
passes entirely beyond the limits of his diseno. 

Q. 89.—Does the diseno in this case show any object or line 
north of the “ Lomas Bajas ?” 

A. 89.—It shows no point beyond the “ Lomas Bajas.” 

Q. 90.—Then if the arroyo is not the boundary, the low hills 
certainly are ; is not that so ? 

A. 90.—I think it probable they are, and it is certainly im¬ 
proper to extend beyond them. 

Q. 91.—Is there any reason whatever either from the grant 
or diseno to think otherwise ? 

A. 91.—I think not. 

Q. 92.—Is there any call in the grant or diseno for the tops 
of the low hills as a boundary ? 

A. 92.—None. 

Q. 93.—Then according to the principle declared by you in 
a previous part of your cross-examination, would not the line 
of the base of these hills be the boundary ? 

A. 93.—The principle alluded to, I presume, is the one in 


23 


which I stated that by the Sierra I understood that it meant 
the base of the Sierra ; in this case we have no descriptions in 
the title calling for the low hills as a boundary, and we have 
nothing but the representation of the “ Lomas Bajas ” on the 
diseho to guide us in our location. I think under these cir¬ 
cumstances the ranchero has a right to include so much of 
them as will make up his quantity. I do not feel absolutely 
certain on this point. 

Q. 94.—In making a location of land from a grant and diseho, 
do you not consider the diseno as part of the grant ? 

A. 94. I do; it is made part of the grant by the title. 

Q 95.—Then as to taking the base of a range of hills as a 
boundary, where there is no call for the top, what difference 
does it make whether the range is called for by the grant or by 
the diseho ? 

A. 95.—The disehos were presented by the petitioner for the 
grant, and frequently represent a much larger portion of land 
than what was granted ; the grants specify the boundaries of 
the land granted, the quantity of land granted, and refer to 
the disehos as exhibiting its locality. I regard the grants as 
the primary evidence in the location ; the disehos are second¬ 
ary, and we must endeavor in our location to conform to the 
grant, and not to violate the disehos—regarding though the 
grant as superior evidence. 

Q. 96.—Your answer might be sufficient in case of conflict 
between the grant and diseho, but take the case here presented 
in which according to your understanding, there is no north¬ 
ern boundary given by the grant, while on the diseho there is 
a range of hills designated, which you conceive to be intended 
as a boundary, please to state why the rule as to the base of 
the hills being taken as the boundary should not apply. 

A. 96.—I am not satisfied from the diseho that it was in¬ 
tended to make the “ Lomas Bajas ” the boundary; but I am 
also satisfied that there would be no impropriety in making the 
base of these hills the boundary, provided, there was sufficient 
quantity of land contained between this line and the base of 
the Sierra to make one league. I do not think the evidence 
would j ustify us in giving the ranchero less than his required 
quantity; I think it would be an illiberal construction, al¬ 
though probably perfectly legal. 

Q. 97.—Then in determining from the diseho whether or not 
the “ Lomas Bajas ” were intended to be the boundary, would 
you be governed altogether by the consideration of quantity ? 

A. 97.—From the diseho and title I would make either the 
Arroyo de los Capitancillos, or a line along the base of the 
“ Lomas Bajas,” or a line including part of the “ Lomas Bajas,” 


24 


my northern line, and in the location of this line I would be 
governed by the contents of the rancho. 

Q. 98.-—About what quantity of land is there between the 
Arroyo de los Capitancillos and the line of the “ Lomas 
Bajas ?” 

A. 98.—About two hundred and forty acres. 

Q. 99.—You say the disenos frequently represent a much 
larger portion of land than is granted—did you ever before 
see one which represented a less quantity ? 

A. 99.—Yes, I have seen disenos representing a less quan¬ 
tity of land than was called for by the title. Take for example 
the grant of the Potrero de Santa Clara, held by Commodore 
Stockton, and the grant of El Bincon del Bio San Lorenzo de 
Santa Cruz, held by Major Hensley and others; the latter calls 
for exactly two leagues, while there is within the limits of the 
diseiio, but little more than one league. 

Q. 100.—What is the meaning of Arroyo Seco ? 

A. 100.—It means dry creek. 

Q. 101.—Does the water run in the Arroyo de los Capitan¬ 
cillos throughout the year, or is any portion of it dry ? 

A. 101.—There is a strong stream running at all times at 
the head of the Arroyo de los Capitancillos, at the junction of 
the Arroyo de los Alamitos, and 1 think water runs the whole 
length of the Arroyo de los Capitancillos the greater part of 
the year. 

Q. 102.—Do you know the fact that that arroyo below about 
Station 8 or 9, as marked on map marked “ Ho. 1, Exhibit A. 
P. C.,” has been always known as the Arroyo Seco de los Cap¬ 
itancillos ? 

A. 102.—I do not, but about that point the bed of the creek 
changes from rock to sand and gravel, and I presume the 
water entirely disappears at that point early in the summer. I 
have never followed down the arroyo in the summer season, 
and the lower part of it may be dry 
the preceding answer. 

Q. 103.—If that arroyo bore the name of Arroyo Seco de los 
Capitancillos at the time of the grant to Justo Larios, would it 
affect your judgment as to the location of the northern bound¬ 
ary of the land ? 

[The Attorney for the United States objects to this interrog¬ 
atory because it directs the witness’ attention to a hypotheti¬ 
cal state of facts ; secondly, because it is irrelevant, and thirdly 
because it attempts to change the calls of the grant by parole 
testimony.] 

A. 103.—It would not; the western boundary in the title 
bearing the name of the Arroyo Seco on the side of the esta- 


longer than indicated in 



25 


blisliment of Santa Clara, and there being another arroyo re¬ 
presented on the diseno, marked Arroyo Seco, and on the same 
side adjacent to it, 11 Lindero de Santa Clara.” 

Q. 104.—In making the survey and location of the Rancho 
de los Capitancillos were you governed entirely by your own 
judgment as to the proper location of its boundary lines, or 
had you any instructions to control you upon the subject either 
from Capt. Halleck or any other person ? 

A. 104.—I had no instructions in regard to running Berrey- 
esas dividing line, or the Arroyo Seco, or the eastern and west¬ 
ern boundaries of the rancho. I surveyed the line of the Ar¬ 
royo de los Capitancillos, and the line 44, K. 64, and found 
that the survey contained 811 27-100 acres less than a league ; 
I was not instructed how or where to locate the last named 
lines; I surveyed these lines according to the grant and diseno. 
I reported the fact to Mr. Peachy, that there was a deficiency 
in quantity of 811 27-100 acres, and that it might be taken 
either to the north or south of the lines of the survey, or a 
part to the north and a part to the south; he instructed me 
to draw the line “I. J. K.,” giving the additional quantity of 
land required to complete the league south of the line 44, K, 
64, as he said he wished to ascertain the furtherest possible ex¬ 
tension of the rancho in a southern direction. 

Q. 105.—Then the only line which you located under in¬ 
structions, was the line “I. J. K,” and the other lines were lo¬ 
cated according to your own judgment as to the calls of the 
grant and diseno ? 

A. 105.—That is the case. 

Q. 106.—When you made the survey you took the Arroyo 
de los Capitancillos as the proper northern boundary of the 
tract, according to the grant and diseno, did you not ? 

A. 106.—I did. 

Examination adjourned until August 29, 1856. Deposition 
not signed by consent. August 29, 1856, parties not present. 
Examination adjourned until Sept. 1st, 1856. 


Examination resumed September 1st, 1856. 

Questions by A. P. Crittenden, Esq. on behalf of the 

Claimant. 

Q t 107.—In running the eastern line of the rancho of Justo 
Larios, why did you not run from the point “ O,” Station 65, 
instead of stopping at Station 64 ? 

A. 107.—I stopped at Station 64 because I considered it as 



26 


a base of the Sierra, which is described by the title as being the 
southern boundary by the ranch of Justo Larios. 

Q. 108.—What sierra did you consider that point to be the 
base of? 

A. 108.—The Sierra del Encino. 

Q. 109.—What reason had you. for considering that to be the 
base of the Sierra del Encino ? 

A. 109.—Station 64 is at the base of the first mountain south 
of the Arroyo de los Capitancillos on the diseno of Justo 
Larios; no mountains are represented between the Arroyo de 
los Capitancillos and the Sierra del Encino; this is then one 
reason why the first mountain south of the Arroyo de los Cap- 
itanci'llos should be the Sierra del Encino; another reason is, 
that a number of live oaks or encinos, grow on the northern 
face of the mountain, and therefore the name could be appro¬ 
priately applied, also, because from the diseno of Justo Larios, 
the Sierra del Encino could not have been intended to apply to 
the mountains beyond the Arroyo Seco above the great bend 
of that arroyo at Station 130, or that bend would have been 
represented on the diseno, and the ridge which I have called 
the Sierra del Encino, would be represented as lying between 
the Arroyo and the Arroyo de los Capitancillos. 

Examination adjourned until to-morrow, September 2, 1856 : 
not signed by consent. 


Examination resumed September 2 , 1856. 

Questions by Attorney for Claimants. 

Q. 110.—Have you any other reasons than those given in 
your last answer for considering the ridge in which the New 
Almaden, San Antonio and Guadalupe mines are situated as 
the Sierra del Encino, referred to in the diseno of Justo Larios? 

A. 110.—None other occur to me at present. 

Q. 111.—What is the meaning of the word sierra? 

A. 111.—The primitive meaning is a saw, as applied to 
geography, means a mountain ridge, with irregular, or saw¬ 
like crest. 

Q. 112.—Is the word sierra used to designate every range of 
hills or mountains, or is it only applied in designating the great 
chains of mountains, such as the Sierra Nevada ? 

A. 112.—I cannot state what must be the length of a range 
of mountains to entitle it to the name of a Sierra; it is some¬ 
times used to designate minor ranges and spurs from a larger 
mountain; I will adduce, as an example, the rancho of El 



27 


Kincon de la Canada del rio San Lorenzo de Santa Cruz, 
where it is applied to two spurs of the coast range which ter¬ 
minate near the town of Santa Cruz. 

Q. 118.—How many Sierras did you ever hear of in Cal¬ 
ifornia, and what are their names ? 

A. 113.—I have heard of the Sierra Nevada, the Sierra de 
Santa Cruz, the Sierra Azies, and the Sierra del Encino. I 
do not remember the names of any others which I have seen 
in M exican grants, although I have seen several frequently; 
lands are described as bounded by the Sierra without giving it 
its specific name. I think the word Sierra, in its true applica¬ 
tion, should extend only to chains of mountains, and that it 
should embrace the whole mass of mountains, but in California 
it is not always so applied. 

Q. 114.—What other Spanish words are there in use in Cali¬ 
fornia, beside the word sierra, to designate points elevated 
above the ordinary surface of the earth ? 

A. 114.—Loma, cerro, lomita, and cerrito. 

Q. 115.—What is the meaning of the word lomas? 

A. 115.—It means hills, and is generally applied to low 
hills. 

Q. 116.—Does not the word lomas apply to all the hills 
lying at the foot of a chain of mountains, whether these hills 
are isolated or form a connected range ? 

A. 116.—It is applied to the hills generally suitable for 
grazing, near the base of the mountain ranges ; these hills are 
generally spurs from the main range, and I do not know an 
instance where they extend for any great distance in a continu¬ 
ous range before they extend into the plain. The word lomas 
would be properly applied to isolated hills near the base of a 
mountain range. 

Q. 117.—Lomas may be either high or low hills, may they 
not? 

A. 117.—I think the word lomas is not applicable at all to 
high hills; I have never known it to be so applied. 

Q. 118.'—What are “ lomas altas” ? 

A. 118.—The meaning of the two words is high hills. 

Q. 119.—You have stated that on this ridge on which the 
New Almaden, San Antonio, and Guadalupe mines are situated, 
there are live oaks growing; are there many of them, and on 
what point of the ridge are they ? 

A. 119.—There are a considerable number of them, found 
generally in groves on the northern slope of the ridge, and 
presenting a very beautiful green appearance. There are a few 
on the southern slope. 

Q. 120.—Are there not many live oaks on the mountains 



28 


back of this ridge, and also on the plain to the north of the 
ridge ? 

A. 120.—There are a considerable number on the mountain 
back of the ridge, a few on nearly isolated low hills near the 
northern base of the mountain, but I think none on the plain ? 

Q. 121.—Then, so far as the presence of live oaks is, in your 
opinion, an indication of what is intended by “ Sierra del En- 
cino,” the named range south of this ridge, would answer the 
call of the diseno, would it not? 

A. 121.—It would, as far as the presence of live oaks is con¬ 
cerned. 

Q. 122.—What is the meaning of the word encino ? 

[120, Question and answer objected to, because it seeks to 
vary the calls of the grant.] 

A. 122.—It means a live oak. 

Q. 123.—What is the meaning of the word Sierra del En¬ 
cino? 

A. 123.—It means live oak mountain range. 

Q. 124.—What is the literal meaning of the words? 

A. 124.—Mountain of the Live Oak. 

Q. 125.—What particular live oak tree is there on this ridge 
distinguishable from all others, and from which this ridge could 
take the name of the “Mountain of the Live Oak ” ?—I speak 
of the ridge on which the New Almaden, San Antonio, and 
Guadalupe mines are situated, and which is separated from the 
main chain by the upper portion of the streams designated on 
Exhibit “A. P. C.,” as the Arroyo Seco, and Arroyo de los 
Alamitos ? 

A. 125.—There are several prominent live oak trees on the 
summit of the ridge, but I cannot specify which one may have 
given the name to the ridge ; the one on the peak of Mine Hill 
is very prominent, so also are several others on the summit of 
the ridge to the southward of this point. 

Q. 126.—Have you not examined a great many of the disehos 
upon which grants have been made in California ? 

A. 126.—I have. 

Q. 127.—Are such disehos ordinarily accurate delineations 
of boundaries and objects such as a surveyor would make, or 
are they mere rough sketches, giving a general and indefinite 
description of land ? 

[Question 127 objected to by Mr. Peachy.] 

A. 127.—There are very few accurate surveys made under 
the Mexican Government. Disehos were, of course, inaccurate, 
and merely rough sketches of the land intended to be granted, 
or, more properly, of the land asked for by the petitioner, as 
the diseno was usually presented by him at the time he asked 
for the land. 


29 


Q. 128.—Do you know by whom these disenos were generally 
drawn—whether by a surveyor or by the applicants for the 
land ? 

A. 128.—I cannot know by whom they were drawn, as I did 
not come to California until 1849; but I know that they gene¬ 
rally accompanied the petition. 

Q. 129.—From your examination of them, and from your 
attempts to locate land in reference to them, would you not say 
that, ordinarily, they exhibit great ignorance in the art of sur¬ 
veying and drawing? 

A. 129.—I certainly would. 

Q. 130.—Judging from your acquaintance with grants and 
disenos of California, would you not say that the mode in use 
here of discriminating land was exceedingly indefinite; were 
not objects which would have served the purpose of description 
often omitted in disenos, and were not lines often attempted 
to be fixed by reference to points or isolated objects ? 

[Question objected to, on the ground that it is irrelevant and 
leading.] 

A. 130.—In many, probably the large majority of cases, the 
modes used here did not describe the land as definitely as re¬ 
quired at this time ; objects which would have determined 
precisely the extent of the land were often omitted; and fre¬ 
quently an object at a single point on a line only was marked, 
and the direction of the line had to be determined by the 
general course marked on the diseho; and the representation of 
the topographical features, such as streams and mountains; at 
other points, in some cases, the disenos are still more rude and 
indefinite. 

Q. 131.—Does the diseho Justo Larios exhibit much skill in 
the art of delineating lands, or is it an exceedingly rough 
sketch, showing nothing but a few prominent lines and objects? 

[Question objected to as leading.] 

A. 131.—It is a rough sketch, but better executed than a 
majority of California disenos. The courses of the arroyos, and 
the positions of the mountains are pretty well delineated ; the 
low and detatched hills rising from the plain are not delineated, 
nor the Arroyo Seco which flows through Berreyesa’s ranch. 
From the position of the eastern line, marked Lindero del Sehor 
Berreyesa, I think that at the time this diseno was made, Justo 
Larios designed to claim the land eastward of his present east¬ 
ern boundary, so as to include the stream now known as the 
Arroyo de los Alamitos, from a point where it leaves the moun¬ 
tains, and some land to the eastward of that point. 

Q. 132.—If by the Sierra del Encino, designated on this dis¬ 
eno had been intended, not the main Sierra, but the detached 


30 


ridge in which the New Almaden, San Antonio, and Guada¬ 
lupe mines are situated, and which ridge is designated on the 
Exhibit A. P. C., by the letter “X” at the eastern end, and 
££ Y” at the western, would it not have been delineated on the 
diseno as sweeping down more into the plain, and approaching 
more nearly the Arroyo de los Capitancillos, as it appears in 
fact to form your map ? 

A. 132.—An accurate representation would have shown the 
base of the ridge designated “X. Y.”on Exhibit A. P. C., as ap¬ 
proaching nearer the Arroyo Capitancillos, than is represented 
on the diseno Justo Larios. It has already been explained that 
this ridge is not detached from the main mountains or Sierra, 
but is connected with it, and forms part of it. 

Q. 133.—On the diseno is not the Arroyo de los Capitancil¬ 
los, which corresponds to the Arroyo de los Alamitos, on Ex¬ 
hibit A. P. C., represented as leading in the Sierra del Encino? 
Does not the Sierra del Encino appear on the diseno as extend¬ 
ing, unbroken, eastward of the Arroyo de los Alamitos; and 
how do you reconcile this with the supposition that the Sierra 
del Encino is the ridge “X. Y.? 

A. 133.—The Arroyo de los Capitancillos, corresponding 
with the Arroyo de los Alamitos in Exhibit A. P. C., when it 
is shown on the diseno of Justo Larios as leaving the Sierra, is 
represented as a stream of considerable width; looking from 
the plain, the stream cannot be seen beyond this point, being 
hid by the mountains, and was, therefore, not represented. It 
will be seen that the mountains are shown in elevation, and not 
in plan. The diseno may be said to be partly a map, and 
partly a picture, and, like most of the California disenos, does 
not follow any correct system of drawing. If the stream had 
been continued above the base of the Sierra, as the mountains 
are shown in elevation, it might indicate under the system of 
drawing, that the stream fell perpendicular^, from a point 
above the top of the mountain. By reference to Exhibit A. P. 
C. it will be seen that a mountain ridge corresponding with 
X. Y., lies to the eastward of the Alamitos, and is nearly sepa¬ 
rated from the ridge X. Y. by the stream called the Alamitos, 
which breaks through the ridge. I, therefore, see no evidence 
in the diseno that the Arroyo de los Capitancillos rises in the 
Sierra del Encino, but the diseno merely shows that its course 
within the Sierra is hid within the mountains. 

Q. 134.—Do you consider this diseno so exact that you can 
infer anything from the apparent width of the stream, at any 
point, as it is laid down on the diseno ? 

A. 134.—I could not, certainly, estimate the width of the 
stream from the diseno, but if it was intended to indicate the 


31 


liead of the stream, I think it would have represented it of less 
width at this point than it has lower down. 

Q. 135.—You mean to say, do you not, that it would have 
done so if it were correctly drawn ? 

A. 135.—It would have done so, undoubtedly, if correctly 
drawn. I think, judging from the disenos that I have seen, that 
the great probability is that it would have been so represented 
if intended to show the head of the stream. 

Q. 136.—Then you think, do you, that there is a great prob¬ 
ability that these disenos are correctly drawn, and delineate 
objects according to a scale? 

A. 136.—I certainly do not. 

Q. 137.—Then how can you say that if the intention had 
been to show that this was the head of the stream, the diseno 
would have actually showed it by the diminished width of the 
stream ? 

A. 137.—I think any child of ordinary intelligence would 
have so drawn it, although it knew nothing of the use of the 
scale. I mean a child of ten years of age. 

Q. 138.—Do you not believe that the lines representing those 
streams on that diseno were drawn without any intention what¬ 
ever to convey any idea of the width of those streams, but 
merely to designate, roughly, that there were streams there ? 

A. 138.—The primary intention was to represent the position 
of the streams. The double lines were, undoubtedly, placed 
there to show its width, as they could not have been placed 
for any other purpose; the probability is, that the one who 
made them knew little or nothing about the use of a scale, and 
that, therefore, the rules of proportion would be grossly vio¬ 
lated. I cannot judge how far he cared to represent the width 
correctly. 

Q. 139.—Is not the apparent width of the stream, at every 
point, out of proportion to the dimensions of the tract of land? 

A. 139.—It is represented as many times its proper width. 

Q. 140.—Assuming, as a fact, that by Sierra del Encino was 
intended not the ridge U X. Y.,” but the main Sierra, lying 
south of it, would it be at all singular that a rough sketch like 
this diseno, should not show the course of the Arroyo Seco, 
and the Arroyo de los Alamitos, above the bend where they 
leave the Sierra, especially when it is considered that the base 
of the Sierra was the southern boundary of the land, and it 
was unnecessary that these portions of those streams should be 
delineated in order to fix that boundary? 

[Question objected to.] 

A. 140.—I think it would be very singular, as it would be 
impossible to fix the base of the Sierra, unless you call it along 


32 


those streams, for a portion of the distance, and a line crossing 
the ridge from one stream to the other, for the remainder of 
the base of the Sierra. The representations of the upper part 
of the Arroyos, and of a line crossing from one to the other 
would have been the most obvious mode of representing it, and 
could not have been omitted in any diseno, having any ordi¬ 
nary claims to accuracy. 

Examination adjourned until to-morrow, Sept. 3d, 1856, at 
10 o’clock, A. M.; deposition not signed by consent. 


Examination resumed, Sept. 3d, 1856. 

WILLIAM J. LEWIS RECALLED. 

Cross-Examination Continued.—Questions by Attorney 

for Claimant. 

Q. 141.—What part of the diseno of Justo Larios is it that 
you call a picture ? 

A. 141.—The representation of tbe mountain and hills which 
are shown in elevation, or as projected on a vertical plain, while 
the other parts of the map are represented as viewed from 
above, or as projected on a horizontal plain. 

Q. 142.—As the mountain as projected on a vertical plain, 
and as on the diseno, there is only a single range represented, 
is it not reasonable to conclude that that range is intended to 
represent the main and loftiest chain, and not the ridge marked 
“X. Y.” on your map? 

A. 142.—I think that the base of the Sierra del Encino shown 
on the diseno represents the base of the ridge “X. Y.,” which is 
also a part of the base of the main range, the ridge “X. Y.” being 
merely a portion of the range ; whether the name Sierra del 
Encino might have been intended to apply to the whole cluster 
of mountains forming that part of Santa Cruz range, I cannot 
tell; but my opinion is otherwise. I think it is not reasonable 
from the data to conclude that the range marked on the diseno 
Sierra del Encino is intended to represent the main and loftiest 
range, and not the ridge marked “ X. Y.” on the map. 

Q. 143.—Why can’t you tell whether or not that the name 
Sierra del Encino was intended to apply to the whole cluster of 
mountains forming that part of Santa Cruz range ? 

A. 143.—Because I have no evidence to enable me to decide 
the question beyond what I have already given. 

Q. 144.—You don’t know, then, as a fact, where the Sierra 
del Encino is, or what range it is, but only infer from the rea- 



33 


sons you have given in your previous answers that it is the 
ridge marked “X. Y.” on the map? 

A. 144.—I judge of the position of the Sierra del Encino 
from facts already given. I infer from disenos that the base of 
the ridge “X. Y.” is the base of the Sierra del Encino, and the 
strong probability is that the ridge “X. Y.” alone is that Sierra. 
I believe I have no knowledge on this point except what I 
have given. 

Q. 145. — In the representation on the diseno of the Sierra 
del Encino, what do you consider that the upper broken line is 
intended to represent ? 

A. 145.—I think it is intended to represent the summit or 
crest of the ridge “X. Y.” 

Q. 146.—Then is there anything upon the diseno to show the 
existence of the main range lying south of that ridge ? 

A. 146.—I think not. 

Q. 147.—Do you not think that those lines drawn upon the 
diseno above the words Sierra del Encino, were intended as a 
rough representation of the appearance of the country south of 
the land including the whole mass of mountain as viewed from 
the plain to the north, and if so, would not that upper line rep¬ 
resent the profile of the main Sierra ? 

A. 147.—I think not, but if so the upper line would undoubt¬ 
edly represent the profile of the main Sierra or Santa Cruz 
range marked on “Exhibit A. P. C.” Sierra Azul. 

Q. 148.—Along the Arroyo Seco from station marked on 
your map 130 eastwardly up to station 98, and thence up the head 
of the stream at the point marked “0,” is there not a deep 
valley or ravine completely separating the ridge “X. Y.” from 
the main Sierra? 

A. 148.—Along the Arroyo Seco from station marked 130 
to station 107, the stream passes through the hills which rise 
immediately from its banks; in some places the banks rise per¬ 
pendicular, and others sloping ; the stream has a rapid descent; 
at station 107 the line indicated leaves the main stream (which 
curves to the south,) and follows up a steep, narrow gorge, 
rising very rapidly from 107 to “O,” and making an indenta¬ 
tion or break in the ridge; at the point “ O,” the ridges are 
entirely connected ; at 130 they are completely separated; at 
the intermediate points they are partially separated as indicated 
above. There is a continuous ravine from station 130 to “ O ” 
through which the streams flow ; I do not think it has sufficient 
width to be called a valley. 

Q. 149.—What do you understand by the word valley ? 

A. 149.—A tract of level or nearly level land bounded at 
least on two opposite sides by hills or mountains. 

3 


34 


Q. 150.—Is there running water from the point u O” down to 
station 130 ? 

A. 150.—In March, 1855, during the rainy season there was ; 
the stream from u 0 ” to 107 was very small and is probably dry 
the greater part of the year. A strong stream comes in from 
the south at this point, and I have no doubt that there is always 
a good deal of running water from station 107 to 130. I found 
a vigorous stream at station 122 a few days since, and the pres¬ 
ent is an unusually dry season. 

[I object to so much of the answer of the witness as speaks 
of the probability of the stream being dry in the dry season. 
Crittenden, Deft’s Att’y.] 

Q. 151.—Were you ever on this stream between the points 
“ O ” and 107 in the dry season, or when there was no running 
water there ? 

A. 151.—No. 

Q. 152.—Does the water run below station 130, and if so 
how far ? 

A. 152.'—In December, 1854, there was water at station 39, 
but none at station 38 nor below that point. 

Q. 153.—What is about the difference of level between sta¬ 
tions 24 and 130, and between stations 130 and 107, and 
between station 107 and the head of the stream at the point 
“O”? 

A. 153.—I cannot tell exactly, I think about 60 feet rise 
from station 24 to station 130, 150 feet from station 130 to sta¬ 
tion 107, and 420 feet from station 107 to “O.” 

Q. 154.—Do you get these differences from having actually 
run a line of levels, or if not, in what mode have you ascer¬ 
tained them ? 

A. 154.'—I did not actually run a line of levels between 
these points. The depression marked 13,25 feet below the 
peak to Mine Hill was ascertained by observing the angle of 
elevation at that point to the peak of Mine Hill, the elevation 
of which above tide was established ; the liiglit of the point at 
the junction of the Arroyo Seco and the Arroyo de los Ala- 
mitos, was established in the same manner. The fall of the 
Capitancillos from the last named point to station 24 was esti¬ 
mated at 53 feet. The comparative fall of the stream from u O” 
to station 24 was divided according to my judgment of the fall 
of the different portions of the stream, and not from any levels; 
and I wish my preceding answer to be considered as only a 
rough estimate of the fall of the streams. 

Q. 155.—In your calculation how do you get'the difference 
of level between the head of the stream at the point “O” and 
the point marked 13.25 feet. 


35 


A. 155.—I took it from the topographical lines on the map. 

Q. 156.—In what way do yon get it from the topographical 
lines on the map, and what lines do yon refer to ? 

A. 156.—I refer to the vertical lines between the point 
marked 13.25 to “0,” each shade or series of vertical lines 
being intended approximately to represent 100 feet. 

Q. 157.—Are these two series of lines drawn accurately 
enough to serve as a guide to determine from the map itself the 
difference of elevation between different points? 

A. 157.—They will not do so accurately; they show the 
topography of the country, and were drawn on the principle 
stated. I found it difficult to have the system rigidly carried out. 

Q. 158.—Was not this topography sketched, not from lines 
of levels run to determine accurately the configuration of the 
ground, but from a near view of the country, and having re¬ 
gard to the known differences of elevation of a few points ? 

A. 158.—The topography was sketched in the manner indi¬ 
cated in the question, except the sketches were taken from a 
great number of points. 

Q. 159.—Following the Arroyo de los Alamitos up through 
the hills to Station 79, and thence to the head of the stream at 
the point marked “ P,” you find a deep and well-defined valley 
or ravine ? 

A. 159.—Following up the Arroyo de los Alamitos, the stream 
runs through a deep ravine; this large ravine continues from 
79 to 90, near which it heads; a small stream comes in from 
“ P ” in a direction nearly at right angles to the larger and 
deeper ravine. The stream makes a small ravine from “P” 
to its mouth; below 79 the Alamitos runs through a deep ra¬ 
vine. 

Q. 160.—How far apart are the two streams which head at 
the points “O” and “P,” and what is the distance between 
those streams where they approach each other nearest ?” 

A. 160.—They are nearest at their heads, points marked 
“ O ” and “ P,” which are about 37 chains, or 814 yards apart. 

Q. 161.—How did you ascertain that distance ? 

A. 161.—By measuring it on the map. 

Q. 162.—Did you run a line along those streams, if not, how 
do you know that they are correctly laid down on the map ? 

A. 162.—I did not run a line along the stream which heads 
at “P,” nor along the upper part of the stream that runs from 
“O” to Station 98; but I did run a line from Station 95 to 
point marked 13.25 feet; I also walked down the ravine from 
“ P ” to 79, and I am satisfied the representation on the map is 
about right. 

Q. log.—What is the elevation of the lowest point of the 


36 


gaps which has to be passed between the streams heading at 
“0” and “P?” 

A. 163.—1,325 feet above tide. 

Q. 164.—Is there a distinctly marked ravine along your line 
from Station 90 to Station 95 ? 

A. 164.—The ravine heads or runs out at a depression in 
the ridge at Station 95, but at a very short distance below Sta¬ 
tion 95, to Station 90 there is a distinctly marked ravine. 

Q. 165.—What is the elevation of the summit which you 
cross near Station 95 ? 

A. 165.—1,349 feet. 

Q. 166.—You ran your line, did you not, from Station 65 
up the branch of the Alamitos, and thence crossed over to 
the Arroyo Seco. Why did you not, when you reached Sta¬ 
tion 79, run up the stream which heads at “ P ?” 

A. 166.—Because the stream I ran up, from Station 79 to 
90, was much larger than the stream coming in from “ P,” and 
followed the bottom of the ravine or gorge between the moun¬ 
tains. 

Q. 167.'—When you ran the line from 79 to 90, had you 
ever crossed the summit between l< P ” and “ O,” or examined 
the upper portion of the Arroyo Seco from “O” to Station 
98? 

A. 167.—I had not. 

Q. 168.—If you had been running the line up the Arroyo 
Seco, when you reached the point, Station 98, would you not 
have continued up the stream which heads at point “ O,” and 
thence crossed over to the stream which heads at “ P ? 

A. 168.—I would. 

Q. 169.—If one of these two lines had to form the part of 
the southern boundary of this tract, that is, the line which you 
have run from Station 79 to Station 98, or the line from Sta¬ 
tion 79 running up The stream which heads at “P, 55 thence 
crossing over to the stream which heads at “O,” and thence 
down to Station 98, with the knowledge which you now have 
of the country, and considering that the latter line is the most 
direct and passes over at the lower summit than the former, 
and that either of the two would give an excess in the quan¬ 
tity of the land, which would you take as the proper location 
of that point of the line ? 

A. 169.—If I was obliged to take either, I would, for the 
reasons mentioned, give the preference to the last described 
line. 

Q. 170.—About what quantity of land is included within 
the two lines described in the last preceding question ? 

A. 170.—About 300 acres. 


37 


Q. 171.—Please to describe the ridge u X. Y.;” is it uniform 
in hight, or is it broken and irregular. If you know the 
hights of any points upon the ridge, please state them and 
mark them on “ Exhibit A. P. C.?” 

A. 171.—The hights of the several points on the crest of 
the ridge, as determined by me are now marked on “ Exhibit 
A. P. C.,” and expressed in feet. The highest points on the 
ridge is the point marked peak of Mine Hill, and is 1,707 feet 
between that point and the Hacienda, or eastwardly the de¬ 
scent is very rapid. From the peak of Mine Hill, going west- 
wardly, the hight of the ridge decreases rapidly until it falls 
about 100 feet, the crest then is tolerably uniform until it 
reaches the point marked 1,500 feet; it then has a series of 
summits with depressions between them, but gradually de¬ 
creasing in altitude until you come to a low point near the let¬ 
ter “E,” in the word, San Antonio Mine. Then rises again and 
there are a series of summits until you come to the point 
marked u P ;” immediately beyond, or to the westward of this, 
there is a low gap near the Gaudaloupe Mine, the crest of the 
ridge then rises, and the ridge finally terminates at Station 
130. The elevations marked on the map are the elevations 
above tide. 

Q. 172.—What hight would you have to ascend from the 
plains crossing this ridge at the lowest point ? 

A. 172.—I think about 550 feet by crossing near the Guada- 
loupe Mines. 

Q. 173.—-What hight would you have to ascend crossing 
near San Antonio ? 

A. 173.—About 600 feet. 

Q. 174.—Is the slope of the ridge on the north uniform, or 
is it abrupt in some places, and in others a gradual descent to 
the plain ? 

A. 174.—The slope is very irregular; in some places very ab¬ 
rupt, in others more gradual; the high spurs jutting out from 
the main ridge add to the irregularity of the slopes. 

Q. 175.—Can you ride on horseback over almost any part 
of this ridge? 

A. 175.—There are a few points where you can ride over 
the ridge; there has been a road constructed from the Haci¬ 
enda to the mine, which you can ride up and which wagons 
can go up. When you have attained the crest of the ridge, a 
short distance west of a peak, I think you could ride on horse¬ 
back probably nearly the whole length of the range. 

Q. 176.—What is the general character of the vegetation on 

this ridge? 

A. 176.—On the lower part of the ridge, on the north side, 


38 


there is grass in ordinary seasons; higher up, chiefly oaks and 
dense thickets ; on the summit, a few oaks, and generally but 
little grass; the south slope of the ridge is very barren, and in 
many places generally very rocky; some places the rocks ex¬ 
tend to the summit of the ridge. 

Q. 177.'—Do you mean to say that the southern slope of that 
portion of the ridge which lies westward from the San Antonio 
mine is very rocky and barren ? 

A. 177.—I have said that generally the southern slope is 
very rocky and barren; there is a small part of it near the 
San Antonio mine that is an exception. The greater part of 
the land between the San Antonio and Guadalupe mines are 
of that description, and I cannot give the land in the vicinity 
of the Guadalupe mine a different character. 

Q. 178.—Is not this ridge a good range for stock? is it not 
more valuable for grazing purposes than the plain which lies 
between it and the Arroyo de los Capitancillos ? 

A. 178.—In a dry season like the present, the northern 
glasso is undoubtedly better for stock, or rather the little in¬ 
dentations between the bases of the spurs; the grass on the 
plains is now completely dried up. 1 think that in ordinary 
seasons stock would do well on the plains throughout the year, 
and, of course, it would be preferable to retain them there, 
rather than to have them in less accessible positions. 

[Mr. Peachy on behalf of the United States objects to the 
questions and answer, on the ground of its irrelevancy.] 

Q. 179.—Are there not on this ridge innumerable cattle- 
paths, showing that a great number of cattle have ranged 
there ? 

A. 179.—I have not seen many; indeed, very few, and they 
did not appear as if they had been much traveled. 

Q. 180.—Is the space between the foot of this ridge X. Y., 
and the Arroyo de los Capitancillos a level plain, or is it 
broken, or does it descend towards the arroyo ? 

A. 180.—It is not a level plain, but has a gradual inclination 
towards the arroyo. There are several hills, some isolated, and 
others nearly so, rising from the plain. There are also several 
arroyos partially crossing the plains, and then wasting them¬ 
selves, and the ground is slightly rolling between them. 

Q. 181.'—What is about the average fall from the base of 
the ridge to the arroyo ? 

A. 181.—About eighty feet. 

Q. 182.—What is the elevation of the point “ 0 ” at the 
junction of the Arroyo Seco and the Arroyos de los Alamitos? 

A. 182.—Two hundred and fifty-three feet. 

Q. 183.—Do you know the elevation of any other points- 



39 


except on the plain besides those yon have already designated? 
either on this tract of land, or in this vicinity, or on the sierra 
south of it ? If yes, please state what points and their eleva¬ 
tion, and designate them on Exhibit A. P. C. 

A. 183.—Those in the vicinity of the rancho not already 
described are Mount Bache, 3,780 feet; Mount Chual, 3,530 
feet; Mount Umunhum, 3,430 feet; point marked Live Oak, 
2,250 feet; Puachi de Chismantucke, 1,790 feet; point on 
Pueblo Hills; summit on continuation northward of eastern 
line of rancho, 800 feet. All these elevations are above tide. 
Mount Bache and Umunhum, and Chual mountains, are the 
highest peaks of the Santa Cruz Mountains, in view from the 
Arroyo de los Capitancillos. 

Examination adjourned until to-morrow, September 4th, 
1856 ; deposition not signed by consent. 


Examination resumed, September 4th, 1856. 

Question by Attorney for Claimants. 

Q. 184.—State, if you please, how you determined these 
elevations ? 

A. 184.—The basis was the summit of Mount Bache, on 
which there is a pole established by the United States Coast 
Survey, and the hight was taken as ascertained by them. The 
map was made by the whole tract, and the depressions of the 
various points ascertained by taking the vertical angles to 
Mount Bache from a large number of points and from these, 
obtaining in a similar manner the altitude of other points. 

Q. 185.—At the point marked Live Oak, 2,250 feet, is there 
any object which is remarkable, or which is visible from a 
great distance on the plain ; if so, what is it ? 

A. 185.—There is a live oak on the high spur at this point 
which is not surrounded by other trees, and which is visible 
from a great distance. 

Q. 186.—Describe the spur upon which that live oak is 
situated. 

A. 136.—It is a high spur projecting from the main range 
west of the Umunhum, having a moderate slope in its upper 
part, hut abrupt below. The upper portion is covered with 
timber, but in the vicinity of the live oak the crest of the 
ridge is destitute of trees, with the exception of this one. 

Q. 187.—Is not this live oak tree, and the spur upon which 
it stands, visible from the town of San Jos 6 and from the plain 
for many miles north and northwest of San Josd ? 



40 


A. 187.'—They are visible from some parts of San Jose, and 
from many points to the north and northwest of it. The spur 
can be seen from the vicinity of the Mission of San Jose. 

Q. 188.—Does not this spur project boldly from the mass of 
the sierra, and present a clear outline to the observer, in the 
direction of San Jose, and from the north and northwest of San 
Jos5 ? 

A. 188.—It does appear very distinct when viewed from the 
plain northwest of San Jose, at right angles to the course of the 
spur. Viewed from San Jose it appears on the foreground, but 
in the background, and rising above it, is seen the peak of 
“Unumhum.” 

Q. 189.—Is not the place where this tree stands, a place well 
known to the people of the country ? And has it not a name 
well known to the old Californians ? If yes, what name ? 

A. 189.—I have no recollection of having heard it spoken 
of by any old Californians ; nor have I heard a specific name 
given to it by the present residents. 

Q. 190.—Have you never heard from persons who have re¬ 
sided long in the country, that, from a period long prior to the 
application of Justos Darios’ for this land, the place marked by 
this tree has bore the name of “ El Encino,” and by that name has 
been well known to the people of this country ? and that that 
portion of the main “sierra” which is in the vicinity of this 
spur has been known by the name of “ Sierra del Encino ” ? 

A. 190.—I never have. 

Q. 191.—If you were to ask any of the old residents of that 
vicinity where “El Encino ” was, and where the Sierra del En¬ 
cino was, what answer would they give? 

A. 191.—Never having spoken to them on the subject, I do 
not know what they would say. 

Q. 192.—By what name is this ridge N. Y. known amongst 
the old residents of the country ? 

A. 192.—I have heard it called “Mine Hill” since I have 
known it since 1850; I never heard any Spanish name for it, 
except what may be inferred from “the disenos” of Justo Da¬ 
rios “ and Berreyesa.” 

Q. 193.—Then you never heard it called “Da Cuchiila,” nor 
“Da Cuchiila de la Mina,” by the old Californians? 

A. 193.—I have not, that I recollect. 

Q. 194.—Did you ever hear it spoken of as “ Dos Domas,” by 
the old residents of the country, as distinguishing it from the 
main sierra ? 

A. 194.—I did not, and I should consider the term very im¬ 
proper, as “lomas” is only applied to low hills. 

Q. 195.—If you were about locating this tract of land granted 



41 


to Justo Larios, and were apprised of the fact that that portion 
of the main sierra, in the vicinity of the spur on which this 
live oak stands, was known at the time of the grant, long prior 
thereto, by the name of “ Sierra del Encino,” and that the ridge 
X. Y. never did bear that name, but was known to the people 
of the country by a different name, where would you locate the 
southern boundary of the tract ? 

[Question objected to by Mr. Peachy, because it asks the 
witness’ opinion on a supposed state of facts, and endeavors to 
locate the land contrary to the calls of the “grant” and 
“diseno,” and, further, contrary to the names and natural ob¬ 
jects, as given in the diseno.] 

A. 195.—I would make it along Arroyo Seco, above Station 
139, and follow that arroyo for some distance ; but it is difficult 
to make a survey conformable to the calls of the grant without 
making a line not called for by the grant, and not shown in the 
diseno, running from some points on Berreyesa’s western boun¬ 
dary to some points on the arroyo. I do not see that ^ou could 
have any line following the base of the “ Sierra del Encino,” 
on the supposition that the “Sierra del Encino” is that portion 
of the sierra in the vicinity of the spur on which the live oak, 
marked 2250, is situated, until you strike Berreyesa’s western 
line—if you refuse to consider the mine ridge as part of that 
sierra. 

Q. 196.—In the case put, would you not at least continue up 
the arroyo as far as Station 101, which from your map appears 
to be at the very foot of the spur on which the live oak stands ? 

A. 196.—I would, were it not that the line from Station 101 
to Station 64, at the northern base of the mine ridge, would 
give a contents of more than one league, and Station 64 is the 
most northern point which we can assume for the southern base 
of the sierra. 

Q. 197.—Independent of the consideration of quantity, but 
locating the southern line according to the calls of the grant 
and diseno, and upon the hypothesis above stated as to the 
names of the ridge X. Y. and of the sierra, would you not run 
the line from Station 130 up the arroyo to the point “0,” 
thence across to point “ P,” and thence down the Arroyo de los 
Alamitos to Station 65, at which station the eastern line would 
strike the sierra ? 

[Question objected to by Mr. Peachy, as it is asking the wit¬ 
ness his opinion upon a supposed state of facts not laid down 
in the grant, or called for in the diseno.] 

A. 197.—In order to justify that location, I must consider 
that the name Sierra del Encino applies not only to the spur 
on which the live oak, marked 2250, is situated, but to the 


42 


long ridge running from “Mount Umunhum,” a depression of 
which is crossed between “0” and “ Pand also to the ridge 
east of the Arroyo de los Alamitos, from Station 73 to 65. 
(Which ridge is a spur of Mount “Chual.” That the ridge X. 
Y. is no part of this sierra; that the line described runs from 
Station 130 to Station 65, along the base of the sierra, and not, 
as it does in fact, through narrow gorges with mountains on 
each side. Also, I must suppose that the representation on 
the diseno of “ Justo Larios,” of the streams, and of the coun¬ 
try lying to the north of the southern boundary is grossly in¬ 
correct. Admitting all these suppositions, and disregarding 
the consideration of quantity, I would locate the southern 
boundary as indicated in the question.) 

[Answer objected to by Mr. Crittenden, on behalf of the 
defendant, on the ground that it is not at all responsive to the 
question.] 

Q. 198.—If the ridge X. Y. has, and had at the time of the 
grant to Justo Larios, a distinct name of its own, and was not 
considered nor intended in the grant and diseno as the Sierra 
del Encino, or any part of the sierra, how far would the eastern 
line of the tract of land extend? starting at point “0,” where 
would be its terminus ? 

A. 198.—Its terminus would be at the base of Sierra del 
Encino, and at Station 65, if that name belongs to the main 
ridge south of this station. 

Q. 199.—Does the grant say that the eastern line shall ex¬ 
tend southward to the Sierra del Encino, or only to the Sierra ? 

A. 199.—It says to the Sierra. 

Examination adjourned until tomorrow, Sept. 5th, 1856. 
Deposition not signed by consent. 


Examination resumed Sept. 5, 1856. 

Questions by Defendants’ Attorney. 

Q. 200.—Upon the supposition contained in Question 198, 
can there be any doubt that at station 65 is the point where the 
eastern line will strike the Sierra and the point intended by the 
grant as the southern terminus of that line ? 

A. 200.—I should think not. 

Q. 201.—Assuming further, that the spur on which the live 
oak stands was a place well known and commonly designated 
as El Encino, and considering that it is very common, as you 
have said, in California titles, for a whole boundary line to be 
fixed by a single object, and taking the point 65 as a terminus 



43 


of the eastern boundary line, how would you locate the south¬ 
ern line of the tract ? 

A. 201.—On the assumptions contained in the preceding 
questions from 198 to 201, I would be independent of the con¬ 
sideration of quantity, run the southern boundary from Sta¬ 
tion 130 up the Arroyo to point u 0,” thence to u P,” thence 
to Station 79 and thence along the Arroyo de los Alamitos to 
Station 65. 

[ Questions from 197 to 201 objected to by Mr. Peachy on 
behalf of the U. S. on the ground that they are asking the 
witness his opinion upon a supposed state of facts not laid down 
in the grant or called for by the diseno.] 

Q. 202.—How can the question of quantity enter at all into 
consideration in locating the southern line, the position of 
which is fixed on some points of it, when in your answer to 
interrogatory 70, you say that there can be no excess inasmuch 
as there is no northern boundary named in the grant ? 

A. 202.—There can be no excess because no northern boun¬ 
dary is named and because the land between the base of the 
sierra and the Arroyo de los Capitancillos includes less than 
one league. I stated, also, that if more land had been included, 
the diseno would have conflicted with the grant; but such was 
not the case. The suppositions contained in the questions from 
198 to 201, are, as I think, inconsistent with facts. On these 
suppositions, for the reason above given, the diseno would 
have conflicted with the grant. 

Q. 203.—Ho you know any place, mountain or ridge in this 
vicinity which is called and known by the people of the 
country as the Sierra del Encino ? 

A. 203.—I do not. 

Q. 204.—Hid you ever make any inquiry of the old residents 
of the country for the Sierra del Encino or for El Encino ? 

A. 204.—I do not recollect that I ever did. 

Q. 205.—Is it not a somewhat unusual course for a surveyor 
to undertake to locate the lines of a tract where the grant calls 
for natural objects bearing a definite name without making any 
inquiry whatever as to the names of objects of those persons 
who would be most likely to know their names, especially if 
the surveyor himself did not know and had never heard of the 
objects called for by the grants ? 

A. 205.—It would certainly be an unusual course for a sur¬ 
veyor, on the suppositions named, but in this case I knew well 
the names of the objects designated in the grant, except the 
specific name of this sierra, and I thought, and still think, that 
the sierra indicated on the diseno, is the one lying next to the 
Arroyo de los Capitancillos, and cannot, consistently with the 
position of other objects delineated, represent any other. 


44 


[Objection made to so much of the answer as give the 
thoughts or opinions of witness, by Mr. A. P. Crittenden, on 
behalf of defendants.] 

Q. 206.—Can you ascertain, by reasoning, the name which a 
natural object bears, or are such names arbitrary and to be as¬ 
certained as facts ? 

A. 206.—I must have facts on which to base any process of 
reasoning. If I have a map before me on which objects known 
to me are drawn and marked with names which I know they 
bear, and I see, also, natural objects marked on the map with a 
specific name and bearing a certain relative position to the 
known objects, and if I see a natural object actually occupying 
the position on the ground, I have, from these facts, a right to 
conclude that this natural object bears the specific name mark¬ 
ed on the map, or at least that the person who made the map 
thought so. The evidence in regard to the latter point is 
stronger than if I had obtained the information from any other 
person except the one who made the map. 

Q. 207.—Does not the call for the Sierra del Encino abso¬ 
lutely require the southern line to run at the foot of the range 
which bears that name? and if the ridge “X. Y.” did not bear 
that name, but the main ridge south of it did, would not the 
southern line have to be located on the ground at the foot of 
that main range, and could this location of it be at all affected 
by the omission in the rough draft, or diseno, of any representa¬ 
tion of the ridge “X. Y.? ” 

[Question objected to on the ground that it asks the witness 
his opinion on a state of facts not laid down in the grant, or 
called for in the diseno, by Mr. Peachy, on behalf of the United 
States, for the further reason, that it asks the witness in regard 
to a location altogether independent of the intention of the 
grantee, appearing from the diseno and the other papers con¬ 
nected with the grant.] 

A. 207.—The calls for the Sierra del Encino requires a 
southern line to run at the foot of the range which bears that 
name, and on the supposition made, the southern line would 
have to be located on the ground at the foot of the main range, 
if it could be done at all, and comply with the other conditions 
of the grant, and conform to the diseno, the location would not 
be effected by the omission in the rough draft or diseno of the 
ridge “X. Y.” 

Examination adjourned until Monday next, Sept. 8th, 1856 ; 
depositions not signed by consent; parties not present. Exam¬ 
ination again adjourned until to-morrow, September 9th, 1856. 


45 


Examination resumed September 9th, 1856. 

Questions by A. P. Crittenden, Esq., Attorney for 

Claimants. 

Q. 208.—Does not the call for the sierra at the southern termi¬ 
nus of the eastern line require that that line, starting from 
point “0” should run on to the foot of the main range, at 
Station 65, notwithstanding the ridge U X. Y.,” which would 
have to cross on the ground, should not be delineated on the 
map, provided that ridge was not known as the sierra, but had 
a name of its own, distinguishing it from the sierra? 

A. 208.—It does subject to the proviso in the question. 

Q. 209.—How can you say that the suppositions made in 
the questions from 198 to 201 are inconsistent with facts, when 
you admit that you do not know, as a fact, what mountain, or 
portion of a mountain, was called Sierra del Encino, but only 
infer it from the location of other known objects in the diseno? 

A. 209.—In question 198 it is supposed that the ridge “X. 
Y” was not intended on the grant and diseno as the Sierra del 
Encino, or any part of the sierra. The diseno has a ridge rep¬ 
resented, and marked, Sierra del Encino, which corresponds to 
the position which the ridge “X. Y.” occupies on the ground; 
the supposition conflicts with the diseno in this respect. 

The ridge “X. Y.” is, I think, a part and is certainly con¬ 
nected with the higher sierra, south of it, and the supposition 
in the question is, I think, in this respect, inconsistent with 
facts. 

Q. 210.—If there was no mountain, or hill, in this vicinity, 
known as the Sierra del Encino, but there was a spur of the 
main sierra which bore the name of El Encino, and was well 
known amongst the people of the country, would you not un¬ 
derstand the call for the Sierra del Encino to be a call for that 
sierra of which the place El Encino was part; especially, would 
you not so understand it, when you consider that the call in the 
grant is for the eastern line to terminate, not at the Sierra del 
Encino, but at the sierra? 

[Questions objected to by Mr. Peachy, on behalf of the Uni¬ 
ted States, on the ground that it asks the witness his opinion 
regarding facts not laid down in diseno, or called for in the 
grant.] 

A. 210.—The words Sierra del Encino are found in the dis¬ 
eno, and not in the grant; I therefore, looked to the diseno to 
see what sierra is meant. If, in making the diseno, its author 
applied the name, Sierra del Encino, to a ridge which did not 
bear that name, or w r as not generally known among the people 
as such, the false application of the name does not change the 


46 


intention of the framer of the diseho, which can be best gath¬ 
ered from the diseho itself, and which indicates the ridge “X. 
Y.” as the one designated. The call in the grant for the termi¬ 
nus of the eastern line, confirms this view, as it appears to me, 
very improbable that a point like Station 65, on the Arroyo 
de los Alamitos, surrounded by mountains, should have been 
considered as the base of the sierra. Had the grant said that 
the eastern line should be extended to the Arroyo de los Ala- 
mitos, the matter would be clear; and had such been their 
intention it is very improbable that it would have been des¬ 
cribed in any other manner. If we consider the spur indicated 
as the Sierra del Encino, we shall have these, and other diffi¬ 
culties, as explained in my former answer, in locating the grant. 
I think these difficulties are insuperable. 

[Answer objected to, as not responsive to the question, by 
Mr. Crittenden, on behalf of defendant.] 

Q. 211.—Question 210 repeated. 

A. 211.—The condition of the question that there was no 
mountain, or hill, in this vicinity, known as the Sierra del 
Encino, is in direct opposition to the words of the diseho, which 
indicates there is a Sierra del Encino in that place. 

If there was none, it is clear that the author of the diseho 
thought there was, and would follow the indication of the 
diseno. I would not understand the call for the Sierra del 
Encino to be a call for that sierra of which the place El Encino 
was part of that sierra was not in, or in the vicinity of the 
locality in which the Sierra del Encino is represented on the 
diseho. 

[Answer objected to, as not responsive to the question, by 
Mr. Crittenden, Attorney for defendant.] 

(A. to Q. 21.1, Continued.)—But if there was no mountain, 
or hill, in this vicinity, known as the Sierra del Encino, but 
there was in this vicinity, a spur of the main Sierra, which 
bore the name of El Encino, and was well known among the 
people of the country, I would understand the call for the 
Sierra del Encino, to be a call for that Sierra of which the 
place El Encino is part. 

Q. 212.—You say you never heard a Spanish name given to 
the ridge “X. Y.” Did you never, yourself, give to that ridge 
a Spanish name? If you did, what name was it? And how 
came you to designate it by that name? 

A. 212.—I never gave the ridge a Spanish name, but in this 
deposition I have stated why I thought that ridge was the 
Sierra del Encino, indicated in the Justo Darios’ diseho. 

Q. 213.—Did you never designate it as the Sierra de los 
Encinos, or Sierra del Encinos, upon a map made by you, and 


47 


which is filed with your deposition in case No. 363, the United 
States v. Maria Z. B. Berreyesa et al ., which is pending in this 
Court. 

A. 213.—By referring to my deposition in case No. 363, I 
find that in the map referred to, and also in the deposition it 
is mentioned as the Sierra de Encinos. I wish my answer to 
question 212 to be considered as connected. I had forgotten 
the circumstance. The name on that map was undoubtedly 
ascribed to it from the fact of the Sierra del Encino being 
marked on Justo Larios map, and was so marked by mistake, 
probably being done from memory. 

Q- 214.—Throughout your deposition in the case 363, you 
speak of this ridge “ X. Y.” as the Sierra de Encinos; how 
came you to give that name to it when as you have stated in 
your present deposition you had never heard it called by any 
Spanish name ? 

A. 214.—For the reasons stated in my preceding answers, I 
thought the name of Sierra del Encino was truly applicable, 
and the name Sierra de Encinos was written by mistake; proba¬ 
bly the substitution was caused by putting it down from memo¬ 
ry instead of referring to the diseno of Justo Larios as I should 
have done. 

Q. 215.—Why do you say that the name Sierra del Encino, 
which in English is mountain of the live oak, was applicable 
to the ridge. 

A. 215.—This ridge has live oak on it, and therefore the 
name might be applied to it on that account. The diseno of 
Justo Larios shows, I think, that it was applied to ; it in my 
opinion is therefore applicable, and has been applied by the 
author of the diseno of Justo Larios. 

Q. 216.—What is the meaning of Sierra de Encinos? 

A. 216.—The words mean mountain range of oaks, but to 
make good Spanish the expression should have been Sierra de 
los Encinos, or mountains of the live oaks. 

Q. 217.—As you have represented on the map referred to in 
your deposition in No. 363, a number of live oaks on the ridge, 
is not likely that you designated the ridge “X. Y.” as the 
Sierra de Encinos, because those trees were there ? 

A. 217.—My memory and also a reference to the answers 
contained in the deposition referred to satisfy me that the name 
was given principally in consequence of the ridge in my opin¬ 
ion being designated Sierra del Encino in the diseno of Justo 
Larios, but the knowledge of the fact that there were a num¬ 
ber of live oaks on the mountain, may have betrayed me into 
the use of the plural form of the noun. 

Q. 218.—Is the tree which is marked on u Exhibit A. P. C.” 


live oak 2,250 feet visible from tke plain, along the banks of 
the Arroyo de los Capitancillos on this tract of land ? 

A. 218.—I cannot say as to my points on the banks of the 
Arroyo, but it is from many points on the road represented on 
the map as running nearly parallel to, and nearly south of the 
Arroyo. 

Q. 219.—When did you make the survey of the Justo Lari- 
os tract from which this map “ Exhibit A. P. C.” is drawn? 

A. 219.—The surveys were made in December, 1854, Janu¬ 
ary and March, 1855, for the portions embraced in the Justo 
Larios tract. 

Q. 220.—You have stated that before commencing this sur¬ 
vey you had examined the expediente of Justo Larios; please 
state whether in that examination you observed the marginal 
decree of the 10th of June, 1842, a copy of which appears at 
page 12, in the transcript of this case; if yes, did that decree 
lead you to examine any other, and what papers ? 

A. 220.—I think my examination was confined to a search 
for the title and discho. I do not recollect the contents of any 
other paper. 

Q. 221.—Did not that decree lead you to examine the settle¬ 
ment of boundaries therein referred to, as calculated to throw 
light on the location of the boundary line of Justo Larios and 
Berreyesa ? 

A. 221.—I have no recollection of the contents of said, 
decree. 

Q. 222.—Have you ever examined, and had you examined 
prior to making this survey, expediente and grant of Josd 
Keyes Berreyesa of the place called Canada de los Capitan¬ 
cillos ? 

A. 222.—I examined a considerable time prior to making 
this survey, the grant and diseiio of Jose Keyes Berreyesa, for 
the place called Canada de los Capitancillos. I do not think I 
ever examined the whole expediente. 

Q. 223.—When you made this survey there, you had no copy 
of the expediente of Berreyesa with you, and no copy of the 
diseno ? 

A. 223.—I had no copy of the expediente with me, but a 
short time before going on the survey I examined a certified 
copy of the diseno in this city. 

Q. 224.'—Please examine the paper now shown you marked 
“ Exhibit N, ” and say whether or not the diseno which appears 
at page 10 is a copy of the same diseno of Berreyesa to which 
you refer in your last answer ? 

[ The attorney for the claimant offers as evidence the v r hole 
of document marked “Exhibit N,” together with a translation 


49 


thereof marked “Exhibit 0,” which last it is agreed between 
the attorney of the claimant, and Mr. Peachy on the behalf of 
the United States, is a correct translation of “ Exhibit N.” Mr. 
Peachy, on behalf of the United States, objects to the intro¬ 
duction of “Exhibit X.”] 

A. 224.—It is. 

Examination adjourned until to-morrow, Sept. 10th, 1856. 
Deposition not signed by consent. 


Examination resumed this 10th day of Sept., 1856. 
Questions by Attorney for Claimant. 


Q. 225.—What ridge is this which is marked on the diseno 
of Berreyesa as Lomas Bajas, and which is crossed by the dot¬ 
ted line marked lindero ; what is there on your map “ Exhibit 
A. P. C.” which corresponds to that ridge ? 

A. 225.'—The ridge marked Lomas Bajas is intended to rep¬ 
resent the one on which the mine of New Almaden is situated, 
and is indicated on my map “ Exhibit A. P. C.” by the letters 
“X. Y.” 


Q. 226.—What is this hill or place designated on the diseno 
Berreyesa as Lomita, and to what does it correspond on your 
map ? 

A. 226.—It is a low hill situated near the middle of the val¬ 
ley of Capitancillos and corresponds to the hill marked Loma 
on my map, at the foot of which the eastern line of Justo La- 
rios is drawn. 

Q. 227.—To what point on your map does the point of junc¬ 
tion of the two creeks marked on the diseno Berreyesa as the 
Arroyo Seco and the Arroyo de los Alamitos correspond ? 

A. 227.—To the point “ O.” 

Q. 228.—What is this dotted line which appears on this 
diseno of Berreyesa and is marked Lindero, and what line on 
your map corresponds with it ? 

A. 228.—It is the western boundary of the ranch Berreyesa 
that corresponds with the line from “ 0 ” to Station 65, on the 
Alamitos Creek. 

Q. 229.'—'What point on your map corresponds with the 
southern terminus of the line Lindero as it appears on the 
diseno Berreyesa ? 

A. 229.—Point on the south side of the creek, near Station 65. 

Q. 230.—It appears, does it not, from the diseno Berreyesa, 
that the ridge which you have marked on your map, “X. Y.” 
was called Lomas Bajas, was considered no part of the sierra, 
and delineated as a distinct range of hills ? 

4 



50 


A. 230.—It is plain that the ridge which I have marked “ X. 
Y” is on the diseno of Berreyesa marked Lomas Bajas, is con¬ 
sidered no part of the Sierra Azul, and is delineated as a 
distinct range of hills; that they are not Lomas Bajas, or 
low hills, and that there is not a valley separating them from 
Sierra Azul, is shown in my map “Exhibit A. P. C.” 

Q. 231.—Are they not low hills, or might they not be so 
called in comparison with the loftier range south of them ? 

A. 231.—The range south of them is a range of very high 
mountains, rising at one point 3,780 feet above the sea. It 
would be improper to speak of these as hills at all, and I think 
it as improper to apply the words “ Lomas Bajas ” or low hills 
to the ridge X. Y. 

The reason suggested in the questions was probably the one 
why they were so named in the diseno of Berreyesa. 

Q. 232.—As effecting the location of this western line of 
Berreyesa, and the question as to how far that line is to run 
southward from the junction of the two creeks, is it at all ma¬ 
terial whether the appellation of low hills (Lomas Bajas) was 
correctly or incorrectly applied to the ridge X. Y.? 

[Question objected toby Mr. Peachy on behalf of the United 
States, on the ground that it is irrelevant.] 

A. 232.—I think not. 

Q. 233.—If this ridge X. Y. was in fact designated on the 
diseno as “ Lomas Bajas,” and thus distinguished from the Si¬ 
erra, and is delineated on the diseno as a separate range, and 
that eastern line is marked on the diseno as crossing this ridge 
and the Arroyo de los Alamitos, and extending to the Sierra, 
and the call of the grants of both Larios and Berreyesa is for 
this line to run to the Sierra, does it not show conclusively 
the intention of the grantor that this line should terminate at 
the range marked Sierra; and could you, in locating this line, 
undertake to disregard that intention, merely because you 
thought the name “ Lomas Bajas,” which was in fact given to 
the ridge X. Y., was inapplicable, and that this ridge ought to 
have been called “La Sierra,” though it was not? 

A. 233.— In the determination of southern terminus of 
the western line of Berreyesa, I am governed by his title and 
diseno, the latter of which requires that this line should run 
from Station “0,” cross the ridge X. Y. and the Arroyo Ala¬ 
mitos, and go to the Sierra Azul, beyond that Arroyo. In the 
location of the southern terminus of the eastern line of Justo 
Larios, I am governed by his diseno which does not rep¬ 
resent his line as either crossing this ridge on the Alamitos 
creek, but stopping at the base of the first ridge south of the 
Arroyo de los Capitancillos, and called on the diseno the Si¬ 
erra del Encino. Further, the call of the grant of Justo 


51 


Larios requires that the eastern boundary should be the 
land of Berreyesa, which has for its western boundary the 
line described on Berreyesa’s title, but does not require that 
the rancho should extend southwardly to the terminus of Ber¬ 
reyesa’s line. 

Q. 234.—What points on the diseno of Berreyesa correspond 
with the points which are marked on your map “I,” and Sta¬ 
tion 64 ? 

A. 234.—The point 64 will be near where the dotted line 
crosses the line under which is written “Lomas Bajas,” the 
point “I ” will be on the dotted line a little above it. 

Q. 235.—In your answer to question 233 you say that in de¬ 
termining the southern terminus of the western line of Berrey¬ 
esa, you are governed by his title and diseno, and in the loca¬ 
tion of the southern terminus of the eastern line of Justo La¬ 
rios you are governed by his diseno; in the latter case as in the 
former, why are you not also governed by the title as well as 
the diseno. And in determining the southern terminus of 
either of these lines, why do you not refer to both titles and 
both disenos, as this line was the division line between the two 
tracts of land agreed upon by the parties and their agreement 
assented to and acted upon by the government; and especially 
in determining the eastern line of Justo Larios, ought you not 
to refer to the expediente of Berreyesa which contains the evi¬ 
dence of the agreement of the parties and the action of the Gov¬ 
ernment thereon ? 

A. 235.—In determining the southern terminus of the east¬ 
ern line of Justo Larios, I was governed by his title as well as 
his diseno. I see nothing in the expediente of Berreyesa which 
is sufficient in my opinion to justify the extension of Justo La¬ 
rios’ line beyond the Alamitos. I think the title and diseno of 
Justo Larios should determine the southern terminus of his 
eastern line, and is sufficient for that purpose. I do not see 
that the title of Berreyesa has anything to do with the ques¬ 
tion. The settlement of the boundary between them was evi¬ 
dently to determine how far eastwardly or westwardly the 
claims of Justo Larios and Berreyesa should extend. If one 
property bounds on another, it does not follow that the for¬ 
mer has the same extent as the latter, any more than that 
property bounding on a street must necessarily bound on it for 
the whole length of the street. 

Q. 236.—Was the grant to Justo Larios made by reference 
to the diseno prescribed by him alone or in order to determine 
his eastern boundary, must you look also to the expediente 
and diseno of Berreyesa? 

A. 236.—I think the grant of Justo Larios was made in refer¬ 
ence to the diseno presented by him, but the eastern boundary 


52 


was settled differently from wliat it is represented on Jnsto Lar- 
ios’ diseno, and in a definite manner very particularly described 
in the title. The title to Justo Larios does not refer to Berrey- 
esa’s diseno, but it does to his own diseno. I see no necessity 
of referring to the diseno and expediente of Berreyesa in order 
to determine this line ? 

Q. 237.—Is the dividing line to Justo Larios and Berreyesa 
designated at all on the diseno of Justo Larios? 

A. 237.—It is not. I speak of the dividing line by agree¬ 
ment as described in their titles. 

Q. 238.—Is it not manifest from the proceedings of the two ex- 
pedientes that this dividing line was agreed upon after the expedi¬ 
ente of Justo Larios was drawn and presented to the Governor ? 

A. 238.—I think it is. 

Q. 239.—Is not this dividing line distinctly marked on the 
diseno of Berreyesa, and in exact conformity to the agreement 
between Larios and Berreyesa, as the name is expressed in 
the report of Jose Z. Fernandez, which appears in the expedi¬ 
ente of Berreyesa, and is dated Monterey, 16th of June, 1842? 

A. 239.—I answer in the affirmative to the above questions. 

Q. 240.—Is it not manifest from the proceedings in these 
two expedientes that both these grants were issued after the 
agreement between Berreyesa and Larios as to the boundary 
between them, and in accordance with that agreement? 

[Mr. Peachy on behalf of the United States objects to the 
above question on the ground that the time at which the 
titles were issued, cannot be proved by parole testimony.] 

A. 240.—I think so. 

Q. 241.—What is the eastern boundary of “Justo Larios,” 
as expressed in the grant to him ? 

A. 241.—The eastern boundary is the rancho of citizen Josd 
B. Berreyesa, which has for its boundary a line running from 
the junction of the Arroyo Seco and the Arroyo de los Alami- 
tos southward to the sierra, passing by the eastern base of the 
small hill situated in the middle of the Canada. 

Q. 242.—What is the western boundary of Berreyesa, as it 
is expressed in the grant to him ? 

A. 242.—The western boundary is the rancho of citizen 
“Justo Larios,” which has for boundary a line running from 
junction of Arroyo Seco, and Arroyo de los Alamitos, south¬ 
ward to the sierra, passing by the eastern base of the small hill 
situated in the center of the Canada. 

Q. 243.—AVhat is an eastern or a western boundary ? 

A. 243.—It is the line which bounds or limits the extent of 
the tract on the eastern or western side. 

Examination adjourned until to-morrow, Sept. 11, 1850. 
Deposition not signed by consent. 


53 


Examination Resumed, September 11, 1856. 

Questions by Attorney for Claimants. 

Q. 244.—As the grant to Justo Larios declares that his eastern 
boundary is the western boundary of Berreyesa, and describes 
that line by fixing its position and length, and as the grant to 
Berreyesa declares his western boundary to be the eastern 
boundary of Justo Larios, and determines that line in precisely 
the same manner and with the very same words ot description, 
how can you make any difference between the eastern line of 
Larios and the western line of Berreyesa, either in position or 
length ? 

[Questions objected to, on the ground that it presents to the 
witness a state of facts which are contradicted by the grants 
and disenos referred to, and interrogates him on the state of 
facts as presented by the question (by Mr. Peachy) on behalf 
of the United States.] 

A. 244.—The corresponding descriptions seem to refer pre¬ 
cisely to the same line, both as regards to position and length, 
but the reference to the two disenos and titles shows that the 
southern terminus of the ranchos are different. 

Q. 245.—Does not the grant to Berreyesa declare that the 
eastern line of “Justo Larios” extends from the junction of 
the two creeks, at the point marked on your map “0,” to the 
point marked on your map, Station 65 ? I mean, taking also 
into consideration the diseno of Berreyesa ? 

A. 245.—I think it does. 

Q. 246.—Do I understand you rightly then to say, that not¬ 
withstanding this clear requirement of the grant and diseno of 
Berreyesa, that the eastern line of “ Justo Larios” does extend 
from the junction of the creeks to the sierra at the point marked 
65 on your map ; and notwithstanding the call in the grant of 
Justo Larios for the sierra as the southern terminus of that line, 
and notwithstanding it is apparent from the diseno of Berreyesa, 
as you have yourself testified, that the ridge marked X. Y. on 
your map was called “Lomas Bajas ” is designated, and not as 
the sierra, and is delineated as a distinct range forming no part 
of the sierra ; yet you would not extend that eastern line, but 
would terminate it at the point marked Station 64, for no other 
reason than you are of the opinion that by the range designated 
Sierra del Encino, was intended not the main sierra, but the 
ridge X. Y.; at the same time admitting, as you have done, 
that you do not know any range or hills in that vicinity called 
“Sierra del Encino,” or any part of any ridge called “El En¬ 
cino,” and never inquired for it from the people of the country, 
and never heard the ridge X. Y. called by that name or by 
any other Spanish name ? 


54 


A. 246.—I say that I would not extend the eastern line, 
notwithstanding the objections urged in the question. I would 
terminate it at or near Station 64, because I believe the diseno 
of Justo Larios plainly indicates that the northern base of the 
ridge X. Y. corresponds to the northern base of the ridge 
marked on his diseno “Sierra del Encino,” and that no other 
construction can be adopted without representing a tract very 
different from that indicated in the diseno, embracing a much 
larger tract of land than was granted; which, had it been in¬ 
tended should have been embraced in the grant, would have 
been differently described. 

Q. 247.—How is it that you will so constantly recur to the 
question of quantity as having anything to do with the case, 
where you have yourself said that the eastern, western and 
southern lines are fixed, but the northern line is not ? 

A. 247.—The northern line is not fixed, but the diseno 
shows that the tract must extend as far north as the Arroyo de 
los Capitancillos, and between that arrbyo and the line which 
has been proposed, south of Mine Ridge, there is included 
much more than one league of land. 

Q. 248.—Why must it extend as far north as the Arroyo 
Capitancillos? 

A. 248.—The point “0,” as indicated by the grant and 
diseno, and also the Arroyo Seco, which terminates at Station 
24, and the northern point of this arroyo, and the whole of the 
Arroyo de los Capitancillos are marked in the diseno, and I 
therefore think the grant must extend as far north as the 
Arrayo de los Capitancillos. 

Q. 249.—Is the Arroyo Capitancillos a boundary because it 
is marked on the diseno, though it is not designated as a boun¬ 
dary nor called for in the grant ? 

A. 249.—It is not. 

Q. 250.—Is the whole length of the Arroyo Seco necessarily 
a boundary because it is delineated on the map, and the Arroyo 
Seco is called for by the grant as the western boundary ? 

A. 250.'—The fact of the Arroyo Seco being delineated on 
the map is not of itself evidence that it must be followed for 
its whole length—in case there is an excess in quantity where 
there is none, it must be followed. 

[The above (last) question and answer objected to by Mr. 
Peachy, on the ground that it asks the witness his opinion.] 

Q. 251.—If by the lines you have run as the boundaries of 
the tract, you had found ten thousand acres of land to be in¬ 
cluded, off of which end of this tract, or how would you cut off 
the surplus ? 

[Question objected to by Mr. Peachy, on behalf of the United 
States, on the ground that it is indefinite and irrelevant.] 


55 


A. 251.—I do not know how it should he done; under the 
Spanish regulation the position of the house of the rancheros 
had much to do with the location of the grant. 

Q. 252.—In the location of the southern line, how could the 
question of quantity be material in your opinion, if you think 
that the grantee could select his quantity, subject only to the 
condition of including his improvements? 

A. 252.'—It is only material, as corroborative evidence, that 
the location is consistent with the intention of the grant, when 
the land embraced in that location corresponds with the quan- 
tity of the land granted, or nearly so. 

Q. 253.—Have you generally found that correspondence in 
locating other grants ? 

A. 253.—There is frequently a variation from the quantity 
called for. There is sometimes more and sometimes less than 
the quantity called for in the grant. 

Q. 254.—Please now to answer question No. 233, which has 
been put to you, but not been answered ? 

A. 254.—I think that the circumstances, as far as they go, 
indicate that the intention of the grants was to make the east¬ 
ern boundary of “ Justo Larios’ ” and the western boundary of 
Berreyesa identical, and were this the only evidence, and could 
we be permitted to entirely exclude Justo Larios’ diseno, the 
southern terminus of his eastern boundary would be south of 
the crossing of Alamitos Creek. I must disregard either Justo 
Larios’ diseno or that of Berreyesa, and in the location of the 
Justo Larios rancho, and of the southern termination of his 
eastern boundary, I feel bound to give the preference to his 
diseno, which is made a part of the title. 

Q. 255.—Suppose in fact, the main sierra, and not the ridge 
X. Y., was intended by the range designated on the diseno, 
Justo Larios’ as the “ Sierra del Encino,” where would be the 
necessity of disregarding that diseno, and what conflict would 
there be between that diseno and the grant of the diseno of 
Berreyesa ? 

A. 255.—On the supposition that the main sierra was in¬ 
tended by the range designated by the diseno of Justo Larios 
as the Sierra del Encino, and that the ridge X. Y. was sup¬ 
posed to be no part of it, the diseno of Justo Larios would be 
grossly incorrect. It would result that the line I have fre¬ 
quently spoken of, from Station 65 to Station 130, would 
represent the southern base of the “Sierra del Encino,” as 
intended to have been indicated on the diseno; that the repre¬ 
sentation on the diseno was so incorrect as to show this line as 
running at the base of a ridge rising from the plains, with no 
mountains to the north of it; that the ridge X. T., live miles 


56 


and three-quarters in length, and rising at one point to an alti¬ 
tude of 1,707 feet above the sea, was a natural object too un¬ 
important to be noticed. That the bends of the Arroyo Ala- 
mitos and the Arroyo Seco, southwardly of the northern base 
of the ridge X. Y., were not represented, and also that the 
tributaries of these streams, and the spur crossed at “0. P.,” 
along which the southern line on this supposition would run, 
were not indicated on the diseno. I think that this is in fact 
to entirely disregard the diseno of Justo Larios in fixing the 
termination of his eastern boundary south of the ridge X. Y. 
An inspection of the disenos of Justo Larios’ and Berreyesa 
show clearly that the southern termination of the eastern line 
of Justo Larios’ ranch on his diseno, does not correspond with 
the southern termination of Berreyesa’s western line, although 
the similar wording in the two grants would seem to indicate 
that these points are identical. 

Examination adjourned until to-morrow, September 12th, 
1856 ; deposition not signed by consent. 


Examination resumed, this 12th day of September, 1856. 

Questions by A. P. Crittenden, Esq., Attorney for 

Claimants. 

Q. 256.—What you have said in your last answer is no 
response to the question; I do not ask you to give reasons 
why, in your opinion, the diseno would be very incorrect on 
the supposition contained in the question; but I assumed that 
the diseno was imperfect in not representing at all the ridge 
marked on your map X. Y., and on that supposition I wish 
you now to answer the question ? 

A. 256.—For the reasons contained in my last answer, I say 
that the suppositions mentioned in the two preceding questions 
involve the necessity of disregarding the diseno of J usto Larios 
so far as relates to the location of his southern boundary. 

[Question and answer objected to by Peachy, on behalf of 
the United States.] 

[Answer objected to by Mr. Crittenden, attorney for claim¬ 
ant, on the ground that it is no answer to the question.] 

A. 256.—(Continued.)—On the supposition that the southern 
boundary is the main sierra, and not the X. Y., and supposing 
that the diseno of Justo Larios was so imperfect as not to rep¬ 
resent at all the ridge marked X. Y., there would be no neces¬ 
sity of disregarding the diseno as far as relates to the general 
boundaries of the tract, which would be still the “Sierra del 



57 


Encino,” the Arroyo Seco arid Berreyesa’s line, and on the 
north as represented. If the diseno was so imperfect as to ex¬ 
clude the ridge X. Y., the other imperfections in the diseno 
(which are noted in preceding answers) must be considered 
minor ones, such as would be likely to occur on these supposi¬ 
tions, there would be no discrepancy between the grants of 
Justo Larios and the grant and diseno of Berreyesa. 

Q. 257.—From the fact that in the diseno of Justo Larios 
the heads of the streams are not delineated, but they appear to 
be issuing from the range designated Sierra del Encino, would 
you not understand that that range was intended to represent 
the main range in which the streams take their rise ? 

A. 257.—From the fact that the Sierra del Encino is shown 
in elevation, and that the streams are large when they leave 
the base, I would infer that the streams rise in or beyond that 
sierra, I do not think the diseno shows which. I do not think 
that the diseno proves that the Sierra del Encino is the main 
range in which the streams take their rise. 

Q. 258.—If you connect the head of the Arroyo Seco at 
the point marked “0,” with Station 65, by a straight line, 
about what area would be included between the lines 65, “ 0,” 
98, and the lines 65, 73, 90, 98, as actually run by you? 

A. 258.—About 600 acres. 

Q. 259.—Suppose on the diseno of Justo Larios a ridge had 
been delineated north of the range marked “ Sierra del Encino” 
parallel with it, and separated from it by a narrow space, the 
relative position of the two corresponding to the relative posi¬ 
tions of u Lomas Bajas ” and “ Sierra Azul,” on the diseno of 
Berreyesa, and that ridge on the diseno of Justo Larios was 
designated “ Lomas Bajas,” or “ Cuchilla de la Mina,” how 
would vou locate the southern line of u Justo Larios,” accord¬ 
ing to his grant and diseno ? 

[Question objected to by Mr. Peachy, on behalf of the United 
States, on the ground that it asks the witness his opinion as to 
what he would do on a supposed state of facts which is at 
variance with the grant and diseno, and contradicted by them. 

A. 559.—I should follow the line heretofore described, from 
Station 65 to Station 79, the points “P” and “O,” and Station 
101 to Station 130. 

Q. 260.—What is there on the diseno of Justo Larios which 
corresponds with that portion of the range marked lomas 
bajas, on the expediente of Berreyesa, which lies on the land 
of Justo Larios, and west of the dotted line marked “Lindero.” 

A. 260.—The eastern part of the Sierra del Encino. 

[Question and answer objected to by Peachy, on behalf of 
the United States.] 


58 


Q. 261.—Then do you consider the range marked Sierra del 
Encino on the diseno of Justo Larios to be the continuation of 
the range marked “lomas bajas,” on the diseno of Berreyesa? 

A. 261.—I do. 

Q. 262.—How do you account for that range being called 
“ lomas bajas” on one side of the dividing line between Ber¬ 
reyesa and Larios, and Sierra del Encino on the others ? 

A. 262.—I do not know how to account for it. 

Q. 263.—When you reached that ridge marked Lomas Bajas 
on the diseno of Berreyesa, in running the western line of Ber¬ 
reyesa from the point marked “ O ” through the point marked 
“ M,” if you were locating it from the grant and diseno of Ber¬ 
reyesa, would you consider that ridge as low hills, and a distinct 
range from the main sierra, and continue that western line of 
Berreyesa to the sierra, or would you terminate that line at the 
point where you struck that ridge and consider that ridge as 
part of the sierra ? 

A. 263.—Under Berreyesa’s diseno I would not terminate 
that line at the point marked Lomas Bajas in his diseno, but 
would cross that ridge and the Arroyo Alamitos, considering 
the terminus of that line as at the base of the Sierra Azul, as 
shown in the diseno on the south side of said Arroyo. 

Q. 264.—What is there on the diseno of Justo Larios which 
corresponds with or represents the hill marked on the diseno of 
Berreyesa Lomita, and by the eastern base of which the dotted 
line marked lindero passes ? 

A. 264.—Nothing. 

Q. 265.—Yet this hill lies wholly on the land of Justo Lari¬ 
os, does it not; and is a most important feature of the country 
as affecting the boundary line between the two tracts, is it not ? 

A. 265.—I answer this question in the affirmative. 

Q. 266.—If the range designated as the Sierra del Encino, 
on the diseno of Justo Larios, was not intended to represent 
the main range in which the streams head, but the ridge marked 
in your map “X. Y.,” through which they break, would there 
not be represented on the diseno a gap or break in the range at 
each of the points where the Arroyo Seco and the stream des¬ 
ignated as the Arroyo de los Capitancillos leave the range? 

A. 266.—In an accurate diseno there would be shown in 
either case a break at the base of the ridge at the point where 
the Arroyo de los Capitancillos leaves the range ; the bends of 
the stream within the mountains would be hid by the moun¬ 
tains themselves ; the Arroyo Seco flows along the western end 
of the ridge “X. Y.,” and on the supposition no break is re¬ 
quired to be indicated at this point. 

Q. 267.—Taking the hight of the house which is represented 


59 


on this diseno as the scale, how high is the range marked Sierra 
del Encino, as represented on the diseno ? 

A. 267.—It is about four times the hight of the house, or 
about sixty feet. 

Q. 268.—Which is represented on the diseno as the highest; 
the range marked Sierra del Encino or the eastern portion of 
the range of hills marked Lomas Bajas? 

A. 268.—The latter. 

Q. 269.—What is their comparative hight in fact? 

A. 268.-—The Sierra del Encino, by which I mean the ridge 
“X. Y.,” is from 2J to 2£ times as high as the Lomas Bajas at 
their eastern extremity. 

Q. 269.—In what mode have you given your answers to the 
questions which have been put to you in the course of this 
cross-examination; have you answered them orally as they 
were read to you by the Commissioner, or have you first writ¬ 
ten down and corrected each of your answers, and then read it 
to the Commissioner ? 

A. 269.—I have answered some of them orally; but gene¬ 
rally in the mode last indicated. 

« 

Examination adjourned until to-morrow, Sept. 13th, 1856. 
Deposition not signed by consent. 


Examination resumed this 13th day of Sept. 1856. Direct 
examination recommenced. 

Questions by Attorney on Behalf of the United Staes. 

Q. 270.—AY hat is a Canada? 

A. 270.—A valley. 

Q. 271.—What sort of a valley is it; a broad one or a narrow 
one? 

A. 271.—It is a valley of no great width, bounded on at 
least two opposite sides by hills or mountains, 

Q. 272.—Describe the Canada of the Capitancillos. 

A. 272.—It is bounded on the north by a range called the 
Pueblo Hills, and the east and southeast by a range connecting 
with the former, called the Laurel Hills, on the south by the 
ridge “X. Y.,” and by a spur of Mount Chual. The Laurel 
Hills are also a spur of Mount Chual. On the west it is bound¬ 
ed by the Arroyo Seco, being uninclosed by hills in that direc¬ 
tion ? 

Q. 273.—Look at the diseno of Berreyesa, “Exhibit X,” page 
10, and state what on your map, or map “A. P. C.,” corres¬ 
ponds to the shaded surface found on that diseno extending on 



60 


tlie easternmost end of the hills lying on the northern side of 
the Canada Capitancillos, and marked Lomas Bajas por la 
parte del plan del Pueblo, and extending across the Canada by 
the tree marked Laurel ? 

A. 273.—It is the ridge marked on the map Laurel Hill and 
on which the position of laurel trees is indicated and marked 
Laurel trees; this ridge shuts in or incloses the Canada at its 
eastern or upper end. 

Q. 274.—What on your map represents the shaded surface 
on Berreyesa’s diseno, lying to the north of the line represent¬ 
ing the base of the Sierra Azul marked Lomeria ? 

A. 274.—It represents generally, the high spur of Mount 
Chual, north of the line 11 12, and south of the line “L. M.,” 
and east of the Arroyo de los Alamitos, and west of L. 11. 
This description is generally correct, but the part at the south¬ 
east corner sloping to the Arroyo de los Llagas, perhaps should 
be excluded. 

Q. 275.—When a Canada is granted with a western and east¬ 
ern limit by lines drawn across it, and giving its length from 
east to west, and nothing is said of breadth, how would you 
locate it ? 

A. 275.—I would make the location so as to include the 
whole Canada from the eastern to the western boundar}^, as de¬ 
fined; making its northern boundary the southern base of the 
northern hills or mountain, and the southern boundary, the 
northern base of the hills or mountains, bounding the Canada 
on the south. 

Q. 276.—According to that mode of location, how would 
you locate that part of the Canada de los Capitancillos which 
is bounded on the west by the Arroyo Seco, and on the east by 
Berreyesa’s western line, or whether by a line beginning at the 
junction of the Arroyo Seco and Alamitos, and passing across 
the Canada by the eastern base of the Loma? 

A. 276.—I would make the eastern boundary the line from 
“0” to 64 on “Exhibit A. P. C.; ” the southern line the red 
line from Station 64 to “K,” and the lines from “K” to 44 on 
the Arroyo Seco; the western boundary, the Arroyo Seco from 
' Station 44 to Station 24, and the northern line a line from 24, 
striking the southern base of Pueblo Hills at the nearest point, 
and then following this base to Station “ 0,” to the place of 
beginning. 

Q. 277.—Why would you locate the Canada in that manner, 
I mean on the north and south sides ? 

A. 277.—Because if it is the intention of the grant to "rant 
that part of the Canada lying between the lines “ 0,” 64 and 
the Arroyo Seco, 1 would feel bound to give him the whole 


61 


breadth of the Canada between these limits, if there were no 
other conditions to limit the grant. I think it might tend so as 
to include a portion of the hills on either side sloping towards 
the valley. 

Q. 278.'—Suppose a tract of land was granted with a western, 
southern, and an eastern boundary, without any reference to 
quantity or the character of the land included within its limits, 
(I mean with reference to its being valleys or hills,) how would 
you locate it ? 

A. 278.—I would make the northern boundary a straight 
line from the northern extremity of the eastern boundary to 
the northern extremity of the western boundary. 

Q. 279.—Connecting the point “0,” on map “A. P. C.” 
with the point 24, at the junction of the Arroyo Seco and Cap- 
itancillos, by a straight line, how much land would be included 
between that line and the Capitancillos? 

A. 279.—416 acres. 

Q. 280.—Will you state why you added to the first survey 
of the Pancho of Justo Larios, which you have described in 
your answer to the 5th question, the slip of land lying to the 
south of the southern boundary of your first survey containing 
811 27-100 acres? 

A. 280.'—It was added at the request of Mr. Peachy, to make 
up the full quantity of one league of land south of the Arroyo 
de los Capitancillos, and between the eastern and western 
boundaries. 

Q. 281.—Will you describe the places where the Arroyos 
Seco and the Alamitos emerge from the mountains, and de- 
bouche into the valley ? 

A. 281.—The point where the Arroyo de los Alamitos may be 
considered as entering the valley, is near where it is crossed by 
the line U L. M.” The valley begins to open a little above this 
point, a little more than half way between it and the entrance 
of a small stream, coming in from the east; at this point the 
hills on the east are very steep and abrupt; on the west not so 
steep. The hills continue steep on the eastern side, and about 
the same slope on the west to the line “L. M.” It is at the 
point where an excavation is made in the hill, on the road from 
San Jose to the Hacienda. The point where the Arroyo Seco 
emerges from the mountain, is near the place marked furnace, 
on the map. On the eastern side of this point the slope of the 
mountain is not very abrupt. On the western side there are 
some low hills, but there is an interval of nearly level land be¬ 
tween the base of these hills and the creek above, or a little 
further up, about Station 127 the mountains are steep and close 
in abruptly on the creek. 



62 


Q. 282.—What is the length of a line drawn from about the 
middle of the line “ 0. M.” to Station 84, on the Arroyo Seco, 
at the western end of Justo Larios’ Rancho? 

A. 282.—About one and a half leagues. 

Q. 283.—Upon what scale is this map made? 

A. 283.—On a scale of twenty chains, or 1320 feet to the 
inch, or of four inches to the mile. 

Q. 284.—What is the direction of the establishment of Santa 
Clara from the Rancho Justo Larios, and what is the meaning 
of the word Establicimiento de Santa Clara? 

A. 284.—By those Spanish words I understand the church 
of Santa Clara, and the buildings belonging to it. Its bearing 
from a central position in this rancho, is about north-west. 

Q. 285.—What is about the average width of the Canada, 
between Justo Larios’ eastern and western boundaries, measured 
from the southern base of the Pueblo Hills to the northern base 
of the range “ X. Y.” ? 

A. 285.—It is a little more than half a league. 

Q. 286.—You have spoken of the depression in the hills 
from the letter “ 0,” along the course of the Arroyo Seco, down 
to the places where it emerges into the valley, or the Canada, 
as a ravine, does this word correctly express the character of 
that depression, and what word in Spanish would you use to 
designate it ? 

A. 286.—The word ravine correctly expresses the character 
of the depression referred to. 

Q. 287.—What do you mean by a ravine? 

A. 287.—I mean it in the sense applied to it in Webster’s 
Dictionary, where it is defined to be “a long, deep, and nar¬ 
row hollow, worn by a stream or torrent of water; hence, any 
long, deep, and narrow hollow, or pass through the mountains.” 
I do not think the word canon means precisely the same thing ; 
I do not know any Spanish word that precisely expresses the 
same meaning. 

Q. 288.—Did you use the word ravine in the sense you have 
now given it, on your cross-examination, when describing the 
character of the depression, through which the Arroyo de los 
Alamitos flows, from the point 79, until it emerges into the 
plain ? 

A. 288.—I did, and I also think the word canon applies 
correctly to that part of the ravine, through which the Arroyo 
de los Alamitos flows, between the points referred to. 

Q. 289.—What is the name of that part of the Santa Cruz 
range of mountains which lies to the south of the Canada of 
the Capitancillos from its head, as shown on Exhibit A. P. C., 
through its whole length ? 




63 


A. 289.—They are described on the diseno of Berreyesa, to 
the south of that rancho is the Sierra Azul; the same range is 
also described by the same name on the diseno of Narvaez, 
whose rancho lies to the westward, and adjoining the rancho of 
Justo Larios, and the Sierra Azul is made one of his bounda¬ 
ries. I have frequently heard this range spoken of as the 
Sierra Azul, and it is a part of the range of mountains sepa¬ 
rating the valley of San Jose from the Pacific Ocean and fre¬ 
quently called the Sierra de Santa Cruz. 

Q. 290.—What is the outline of the Sierra Azul, as viewed 
from a central point of the Ranch Justo Larios? 

A. 290.—The upper outline of the mountains shows two 
high peaks rising, apparently, above the general level of the 
summit of the sierra, resembling, somewhat, a wall with towers 
at each end. I now speak of the sierra from Mount Bache to 
South Umunhum. These peaks are the peaks of Chual and 
Umunhum, neither of which are on the crest of the sierra, but 
lie to the north of it; their position makes them appear higher, 
as compared to the crest of the sierra back of them, than they 
really are. Mount Bache is on the summit, and appears from 
the point of observation, as a peak of nearly the same apparent 
elevation as the Chual, and very close to it. 

To the west of Umunhum the ridge appears about the same 
level as to the east of it, until we come to opposite the rancho 
of Narvaez, where the crest rises. 

Q. 291.—What is the appearance of the ridge “X. Y.,” 
viewed from the same point ? 

A. 291.—The crest of the ridge appears to rise very rapidly 
from the Alamitos Creek, to the point marked on Exhibit A. 
P. C., peak of Mine Hill; a short distance west of this peak, 
the mountains are very broken, and from this point of observa¬ 
tion appear confused with the mountains on the eastern side of 
the Arroyo de los Alamitos. Immediately westward of the 
peak, the crest of the ridge appears considerably lower than 
the peak itself. The crest then appears slightly undulating, 
but nearly level to a point a little less than a half a league to 
the westward. Proceeding westward, the crest descends with 
tolerable uniformity, having a series of little summits, each 
generally, lower than the preceding, to the vicinity of San 
Antonio Mine, where there is a depression in the ridge. Pro¬ 
ceeding westward, the crest rises; passing over another series 
of little summits, descends to another gap opposite the Guada¬ 
lupe Mine, it again rises, appears for a short distance, nearly 
level, and finally descends to the plain. 

Examination adjourned until Monday Sept. 15, 1856, at 10 
o’clock A. M.: Deposition not signed by consent. San Fran- 


64 


cisco Sept. 15,1856, parties not present; examination adjourn¬ 
ed until to-morrow, Sept. 16th, A. D. 1856, at 10 o’clock A. 
M. San Francisco, Cala. Sept. 16, 1856, parties not present. 
Examination adjourned until to-morrow, Sept. 17, 1856, at 10 
o’clock A. M. 


San Francisco, Sept. 17, 1856. 

EXAMINATION OF W. J. LEWIS RESUMED. 

Direct Examination Continued.—Questions by A. C. 

Peachy on behalf of U. S. 

Q. 292.—If the hills marked lomas bajas in the diseno of 
Berreyesa were intended by Justo Larios to be represented by 
the Sierra del Encino in his diseno, is there any reason why 
Justo Larios’ eastern boundary should run the whole extent of 
Berreyesa’s western boundary ? 

A. 292.—I think no good reason. Justo Larios’ eastern 
boundary must terminate at the intersection of his southern 
boundary, which is the base of the Sierra del Encino. 

Q. 293.—State whether you have examined Justo Larios’ 
diseno being the original in the archives of the office of the 
Surveyor General for California ? and state in what respect the 
original differs from the traced copy in the transcript in the 
Guadalupe mining company claim No. 142 in the District Court 
of the United States of the Northern District of California? 

A. 293.—There is one difference which strikes me at present. 
The two sides of the Arroyo de los Capitancillos where it 
leaves the base of the Sierra del Encino are, in this copy of the 
diseno, nearly opposite to each other, but in the original, the 
margin represented on the left is considerably larger than the 
one on the right. 

Q. 294.—Answer the same question in relation to the diseno 
in Charles Fossat’s claim, No. 132. 

A. 294.—In this case the two sides of the Arroyo de los 
Capitancillos are represented as beginning opposite to each 
other. In the original, the left side of the Arro 3 ^o starts from 
the base of the mountains; on this copy it stops short of it. 
No other difference is observed. 

Q. 295.—A line drawn along the base of the Sierra del En¬ 
cino as represented in Larios’ diseno, would it leave any por¬ 
tion of the Arroyo Seco and Capitancillos as thereon delineated 
to the south of it ? 

A. 295.—I think it would leave none of the Arroyo de los 
Capitancillos, and it would leave a very small portion of the 
Arroyo Seco. 



65 


Q. 296.—What is the distance from the point where the Ar¬ 
royo de los Alamitos intersects the line “ L. M.” on map “ A. 
P. C.” to station No. 74 on the Arroyo de los Alamitos ? 

A. 296.—One hundred and eighty-four (184) chains, or 2 
8-10 miles, or little less than 9-10 of a league. 

Q. 297.—What is the distance from Station 58 to Station 
101, the first Station being at the northern base of “ X. Y,” and 
the latter on the Arroyo Seco ? 

A. 297.—About one hundred and thirty (130) chains, 1-58 
miles, or 5-8 of a league. 

Q. 298.—What is the length of the line “ Y. W. ?” 

A. 298.—About one and one fifth (1 1-5) miles, or 41-100 of 
a league. 

Q. 299.—What is the distance from Station 44 to the place 
marked “hotel” on the Arroyo de los Alamitos? 

A. 299.—Two leagues and seventeen hundredths (2 17-100) 
or five and sixty-five liundreths (5 65-100) miles. 

Q. 300.—What is the distance from Station 44 to the place 
where the line “ L. M.” crosses the Alamitos? 

A. 300.—About two and one-tenth (2 1-00) leagues, or five 
and a half (5 1-2) miles. 

Q. 301.—What is the distance from Station No. 30 to the 
letter “ E” in the northern angle of the square “E. F. Gr. H. ?” 

A. 301.—About one and eighty-two hundredths (1 82-100) 
leagues, or four and three-quarter (4 3-4) miles. 

Q. 302.'—How much land would be contained in that portion 
of Berryesa’s rancho which is delineated on map “ A. P. C.” 
by red lines to the west of a line drawn from the northern 
boundary of Berreyesa’s rancho perpendicular to the line “L. 
M.” at the point where that line crosses the Alamitos ? 

A. 302.—About eleven hundred and thirty (1130) acres. 

Q. 303.—And about how much in that part of Berreyesa’s 
rancho as located by said red lines which lies to the west of the 
line “A. B.?” 

A. 303.-—About the same quantity, perhaps a little more. 

Q. 304.'—Supposing the line marked on Justo Larios’ diseho, 
Lindero del Sor. Berreyesas would strike the range marked 
Sierra del Encino at the point where the line “ A. B.” inter¬ 
sects the line “ L. M.” on the map of “A. P. C.” and suppos¬ 
ing further, that the southern terminus of the Arroyo marked 
Arroyo Seco on Larios’ diseho corresponds with the Station 
44 on the map “A. P. C.,” what would be the ratio of Justo 
Larios’ scale to your scale ? 

A. 304.—The ratio would be one to two and three-quarters. 

Q. 305.—What then would be the distance according to this 
scale of Justo Larios for this line thus ascertained from the 

5 


66 


southern terminus of that portion of the Arroyo Seco which is 
delineated on the diseno to the southern terminus of the Ar¬ 
royo named in this diseno Arroyo de los Capitancillos ? 

A. 305.—About two leagues. 

Q. 306.—State whether the hights of the hills wherever 
marked on this map “A. P. C.” are correctly given? 

A. 306.—I believe they are, and indicate the several hights 
above the sea. 

Q. 307.—Describe where the Arroyo Seco and the Alamitos 
take their rise. 

A. 307.—The principal branch of the Arroyo de los Alami¬ 
tos rises near the summit of the Sierra Azul, a short distance 
westwardly of Mount Bache. The principal branch of the 
Arroyo Seco rises high up in the same sierra, northwestwardly 
of Mount Umunhum. The general course of both streams is 
shown in Exhibit “ A. P. C.” 

Q. 308.—Read that part of the decree of the Board of Land 
Commissioners in the transcript of the claim of Charles Fossat, 
which describes the boundaries of the land confirmed, and de¬ 
scribe on the map “ A. P. C.” its western boundary. 

A. 308.—I have not the data by which I can locate the line. 

Q. 309.—Read that part of the decree of the Board of Land 
Commissioners in the transcript of the claim of the Guadalupe 
Mining Company, No. 142, which describes the boundaries of 
the tract of land first confirmed, and describe the boundaries 
on the map “ A. P. C.” 

A. 309.—The boundaries of the tract are represented on 
Exhibit “A. P. C.” by the lines Y. W. W. S., and the Arroyo 
Seco from the point S to the point Y. 

Q. 310.—How much land is included between the lineM. 65, 
the Arroyo de los Alamitos, to the little branch which puts in 
from the east a little below the hotel, a line thence drawn per¬ 
pendicular to the line “ L M,” and from the foot of this perpen¬ 
dicular to the point “ M.” 

A. 310.—About seven hundred and fifty (750) acres. 

Q. 311.—State whether there is anything in the appearance 
of the Sierra del Encino, as drawn in the diseiio of “ Justo La- 
rios’,” showing that it was intended to represent that portion of 
the Sierra Azul lying to the south of the Arroyo Seco from the 
letter “0 ” to the Station 44, and to the south of the fork of the 
Alamitos, from Station 95, down to its junction with the little 
branch putting in from the east a little below the “ hotel.” 

A. 311.—I think there is nothing. 

Re-examination by Mr. Peachy, for the United States, con¬ 
cluded. 


67 


Questions by A. P. Crittenden, Attorney for Charles 

Fossat, Claimant. 

Q. 812.—How do you know that the boundaries given by 
you, in your answer to the 272 question, are the boundaries of 
the Canada de los Capitancillos ? 

A. 812.—I know that the valley described is called the 
Canada de los Capitancillos. The Canada, in conformity with 
the. meaning of the word, can include no more than ground 
which is level, or nearly so, between the bases of the surround¬ 
ing hights. I take the definition from the dictionary of the 
Spanish academy. 

Q. 313.—Then you infer what are the boundaries of the 
Canada de los Capitancillos, from the meaning of word and 
from the character of the country ? 

A. 313.—Yes. 

Q. 314.—Hid you ever hear the people of the country say 
that these were the boundaries of this Canada ? 

A. 314.—I did not. 

Q. 815.—Hoes not the northwestern part of the tract of Justo 
Larios bear a different name ? 

A. 315.—Not that I know of ? 

Q. 816.—Ho you know any place in that vicinity called the 
Portosuelo ? 

A. 316.—Yes, there is a point were the road crosses the 
southern part of the little hill west of Station 21, which I have 
heard spoken of as the Portosuelo ? 

Q. 317.'—If the Arroyo Seco is the western boundary of the 
Canada de los Capitancillos, would not this Canada include 
those hills lying near the Arroyo Seco towards the northwest 
corner of the land ? 

A. 317/—It would. 

Q. 818.—May not a place be designated as a Canada, though 
it may include hills of considerable elevation, which are in¬ 
cluded between hills of still greater elevation ? 

A. 318.—It may if the intervening hills are isolated and 
there are strips of plain lying around it. 

Q. 319.—In locating a tract of land which bears the name of 
a particular Canada, would you be at all guided in determining 
the boundaries of the tract by your idea of the definition of a 
Canada, or would you consider the name as an arbitrary desig¬ 
nation of a place ? and that the boundaries might well include 
hills and even parts of adjacent hills and mountains? 

A. 319.'—The fact of a Canada being included in a tract, and 
being the most prominent characteristic, might give the name 
to a rancho, including not only the Canada, but parts of adja- 


68 


cent hills and mountains. In this case I would give to the 
designation of the rancho only the weight which I think it de¬ 
served in connection with the other circumstances of the grant. 

Q. 320.—Do you not know of instances in which the name 
Canada has been applied on California grants to tracts of land, 
which tracts not only included the valleys from which the 
names were derived, but also the adjacent hills, or portions of 
them ? 

A. 320.—I do; I will instance the Canada del Rincon de 
San Lorenzo. 

Q. 321.—If you wanted to ascertain what the boundaries of 
a particular Canada were, how would you do it where there 
was a long valley, not shut in by hills, on all sides? IIow 
would you ascertain what portion of the valley was called the 
Canada, by your own examination of the country, or by inquiry 
of the people of the country ? 

A. 321.—By inquiry of the people of the country. 

Q. 322.—When you stand on the plain in the vicinity of the 
Arroyos de los Capitancillos, on this tract of Justo Larios, and 
look at the ridge marked X. Y., on map A. P. C., and at the 
main range south of it, what particular appearance is observ¬ 
able as distinguishing the ridge from the main sierra ? 

A. 322.—The main sierra has a deep blue appearance. 

Q. 323.—Is the outline of the ridge marked on map A. P. C. 
X. Y. rugged or smooth, and regular? Does it present any 
broken lines or steep peaks ? 

A. 323.—It presents a series of peaks which are not gene¬ 
rally broken or rugged, but rather graceful in their outline. 

Q. 324.—What does the line L. M. represent ? 

A. 324.—It is a line on Exhibit “ A. P. C.” which represents 
such a location of the southern line of Berreyesa as to include 
the whole length of the Canada, and with his other lines to em¬ 
brace one league of land ? 

Q. 325.—Upon the supposition contained in question and 
answer 304 that the scale by which the disefio of Justo Larios 
is drawn, is, as to the scale Iby which your map “ A. P. C.” is 
drawn, in the proportion of 1 to 2f; in other words, that the 
scale of your map is 2f times that of the diseno of Larios,— 
you say that the distance between the Arroyo Seco, and the 
Arroyo de los Capitancillos, along the base of the Sierra del 
Encino, on the diseno of Justo Larios, is about two leagues,— 
now, taking the same scale, what is the distance from the base 
of the Sierra del Encino, on the diseno, to the Arroyo de los 
Capitancillos, measured across the middle of the rancho ? 

A. 325.—About one league. 

Q. 326.'—Measuring on your map “A. P. C.” along the same 


69 


line one league from tire Arroyo de los Capitancillos, about 
what point would you reach ? 

A. 326.—A point several hundred varas south of the Ar¬ 
royo Seco, about opposite Station 111. 

Q. 327.—Taking this scale as correct, and giving to the tract 
of land the full width north and south called for by the diseno, 
and taking either the Arroyo de los Capitancillos or the south¬ 
ern base of the hills north of this arroyo, and marked “ Lomas 
Bajas,” as the northern boundary of the tract, you would in¬ 
clude, would you not, the whole of the ridge marked X. Y. on 
map “ A. P. C.” ? 

A. 327.—Yes. 

WILLIAM J. LEWIS. 

Sworn to and subscribed before me, this 19th day of Septem¬ 
ber, A. D., 1856. 

GEO. PEN JOHNSTON, 

U. S. Commissioner. 

Memorandum.— The deposition was not signed by the 
witness until the 19th September, although the examination 
concluded on the 18th. 

The foregoing deposition is taken subject to all substantial 
exceptions to the questions and answers, which exceptions may 
be taken on the trial of the case. 

WILLIAM BLANDING, 

U. S. Dis’t Att’y for N. D. of California. 

A. P. CEITTENBEN, 

Att’y for Charles Fossat. 

[Indorsed.] Filed October 3d, 1856. 

John A. Monroe, Clerk. 

By W. H. Chevers, Dep’y. 

I, W. H. Chevers, Clerk of the District Court of the United 
States for the Northern District of California, do hereby certify 
the foregoing to be a full, true and correct copy of the origi¬ 
nal now on file and remaining of record in my office, except¬ 
ing the Exhibits therein referred to. 

In testimony whereof I have hereunto set my hand 

( ) and affixed the seal of said Court, this lith day 

) L# S, [ of August, A. D., 1858. 

1 W. H. Chevers, Clerk. 


70 


United States District Court, ) 
Northern District of California, j 

San Francisco, September 23d, 1856. 

On this day, before George Pen Johnston, a Commissioner of 
the United States for the Districts of California, duly authorized 
to administer oaths, etc., etc. came Jose Noriega, a witness pro¬ 
duced on behalf of the claimant, Charles Fossatt, in case No. 
132, being an appeal from the Board of Commissioners to ascer¬ 
tain and settle the private land claims in the State of Califor¬ 
nia, in case No. 340 on the docket of the said Board of Com¬ 
missioners, and was duly sworn and testified as follows: his 
evidence being interpreted by Eugene S. de Santa Marina, a 
sworn interpreter. 

A. 

Present : ¥m. Blanding, Esq., U. S. District Attorney, on 
behalf of the United States, and H. W. Halleck, Esq., also on 
behalf of the United States; and A. P. Crittenden, Esq., At¬ 
torney for claimant. 

Question by A. P. Crittenden, Esq., Attorney for 

Claimant. 

Question 1.—What is your name, age and place of residence ? 

Answer. 1.—My name is Jose Noriega, I am fifty-six years of 
age, and I reside in San Jose, California. 

Q. 2.—Row long have you lived there ? 

A. 2.—I have lived there twenty-two years. 

Q. 3.—Do you know the place called Los Capitancillos, in 
the vicinity of San Jose, which was granted to Justo Larios? 

A. 3.—I do. 

Q. 4.—In the vicinity of Los Capitancillos do you know any 
place called Del Encino ? 

A. 4.—I do not know such a place on the ranch ; the place 
called Del Encino is beyond the ranch of Justo Larios, on a 
hill called the “Blue Hills.” 

Q. 5.—Is the Sierra Azul the same range in which the Al- 
maden and Guadaloupe mines are situated, or is it a different 
range ? 

[The Attorney on behalf of the United States objects to the 
question as leading.] 

A. 5.—It is a different sierra. 

Q. 6.—Do you know what is the name of the range in which 
the Almaden and Guadaloupe mines are situated ; if yes, what 
is it called ? 

A. 6.—I know the name of the range—the name is “ Los 
Lomas Bajas de los Minas.” 


n 

_ Q. 7.—Can you give a description of the place called Del En- 
cino? 

A. 7.—It is on the side of the mountain below the center of 
the side nearer the foot than the top of the mountain. 

Q. 8.—Why is this place called “Del Encino?” 

A. 8.'—'Because there is a large tree there, which is an Encino. 

Q. 9.—Is this place generally known by that name amongst 
the people of the country ; if yes, for how long ? 

[The Attorney on behalf of the U. S. objects to the form of 
the question as leading.] 

A. 9.-—It is well known to the inhabitants of the country by 
that name; I have known it ever since I have been in San 
Jose by that name. 

Q. 10.—Did you ever hear “ los lomas bajas delos minas” 
called the sierra ? 

A. 10.—I never did. 

Cross-Examination.—Questions by Attorney on behalf 

of the United States. 

Q. 11.—When did you first hear the name of “los lomas 
bajas de los minas ” used? 

A. 11.—When the mines were first discovered ; before that 
time they were known as “ los lomas bajas after the mines 
were discovered they were called “los lomas bajas de los 
minas.” 

Q. 12.—Who told you they were so called? 

A. 12.—No one particularly told me; all the world or every¬ 
body called them so. 

Q. 13.'—Who first gave the name “ de los minas ” to the 
lomas ? 

A. 13.—I suppose the person who first discovered the mines 
gave them the name. I am not able to say who first gave it to 
them. 

Q. 14.—About what year, or how long ago, was this name 
given ? 

A. 14.—Since the year 1845 or 1846, when the mines were 
discovered. 

JOSE NORIEGA. 


Sworn to and subscribed before me, this 23d day of Septem- 

lopp ~| QqA 

’ ‘ GEO. PEN JOHNSON, 

U. S. Commissioner. 


(Indorsed.) Filed October 3d, 1856. 

John A. Monroe, Clerk, 

By W. H. Chevers, Dep’y. 


72 


United States District Court, ) 
Northern District of California, j 

San Francisco, April 17th, 1857. 

On this day, before Cutler McAllister, a Commissioner of 
the United States for the Northern District of California, duly 
authorized to administer oaths, ete., etc. came John La Croze, a 
witness produced on behalf of the claimants in case No. 132, be¬ 
ing an appeal from the Board of Commissioners to ascertain and 
settle the private Land Claims in the State of California, in 
case No. 340 on the docket of the said Board of Commission¬ 
ers, and was duly sworn and testified as follows: 

Present: A. P. Crittenden, Esq., for claimant, and the U. S. 
District Attorney, by A. C. Peachy. 

Questions by Attorney for Claimants. 

Question 1.—Your name, age, and place of residence? 

Answer 1.—John la Croze; forty; San Francisco. 

Q. 2.—What is your profession ? 

A. 2.—I am a U. S. Deputy Surveyor at present. 

Q. 3.—Did you ever make a survey of the Rancho de los 
Capitancillos ? 

A. 3.—Yes, sir. 

Q. 4.—Please to examine the map now shown you, marked 
J. M., and which is annexed to your deposition, and say what 
that map represents, and by whom is it made ? 

A. 4.—This map is a correct copy of a map of a survey 
made by me of the Rancho de los Capitancillos, and the three 
parts in which it is divided, the original of which is in the U. 
S. Surveyor General’s office. The original map was made by 
Mr. William G. Whitman, under my supervision, and who was 
in my employ at the time of making it. 

Q. 5.—By what authority, and under whose direction, did 
you make that survey, and what papers or documents had you 
at the time, and when was the survey made ? 

A. 5.—I made that survey by the authority and under the 
direction of J. C. Hayes, United States Surveyor-General for 
California. I had at the time the decrees of confirmation of 
the Board of the L T nited States Land Commissioners, and trans¬ 
lations of the original papers of the claims of the Guadaloupe 
Mining Company and Charles Fossatt, testified to by the Sec¬ 
retary of the United States Board of Land Commissioners. 
This survey was made the latter part of December, 1854 and 
January, 1855. 


73 

Q. 6.—Did you have any other papers besides those you have 
mentioned ? 

A. 6.—It does not occur to me at present; it is probable I 
may have had. It is probable that I may have had the ex- 
pediente to the claim of Berreyesa. 

Q. 7.—In what manner did the Surveyor General direct 
how you were to make the survey ? 

A. 7.—The Surveyor General gave me verbal instructions 
on the ground of the country that I was to embrace in my 
survey. This survey is made in accordance with those in¬ 
structions. 

Q. 8.—Please designate on the map the lines which repre¬ 
sent thereon the boundaries of the land claimed by Charles 
Fossatt as located by you ? 

A. 8.—Commencing at corner C. C., ISTo. 1; thence in a 
straight line to corner C. C., No. 2; thence following up a 
stream to corner C. C., No. 3, where the stream forks, and 
taking the northern branch, I continued up to the mouth of 
the canon to Station 15; thence up the canon to a dividing 
ridge between Stations 27 and 28, where I planted a stake; 
thence down a canon, following the meanderings of the canon 
to Station 58 ; thence in a north-eastwardly direction to Sta¬ 
tion 59, which is a post on the bank of the Arroyo Seco creek; 
thence up the meandering of the said creek to the place of 
beginning ; the boundaries above described being represented 
on this map by yellow lines. 

Q. 9.—What quantity of land is included within the lines 
spoken of in your last answer ? 

A. 9.—5,691 680-1000 acres. 

Q. 10.—Please designate in like manner the lines of this 
map which represent the boundaries of the land claimed by 
the Guadalupe Mining Company ? 

A. 10.—Commencing at the corner marked G. M., No. 1; 
thence following the meandering of the Arroyo Seco to a cor¬ 
ner marked G. M., No. 2, sycamore tree; from thence to Sta¬ 
tion 56; from thence following the irregular red line from 
station to station to the station G. M., No. 1, or point of begin¬ 
ning ; the boundaries of this tract being represented on the 
map in red lines, the stations being marked in black ink. 

Q. 11.—What quantity of land is embraced within the lines 
spoken of in your last answer ? 

A. 11.—833 152-1000 acres. 

Q. 12.—What quantity of land is included within the boun¬ 
daries of the Kancho de los Capitancillos as represented on that 
map, Exhibit “ J. M.” ? 

A. 12.—7,588 906-1000 acres. 


Q. 13.—What do the three tables which appear on this map 
show ? 

A. 13.—The largest table shows the courses, stations and 
distances of the exterior boundaries of the Rancho de los Capi- 
tancillos; the next smaller table shows the station, courses and 
distances of three-quarters of the Rancho de los Capitancillos, 
confirmed to Charles Fossatt, and the smaller table shows the 
stations, courses and distances of that portion of the Rancho 
de los Capitancillos confirmed to the Guadalupe Mining Com¬ 
pany. 

Q. 14.'—State specially in what manner the Surveyor General 
gave you directions as to the location of the boundaries of the 
Rancho de los Capitancillos ? 

A. 14.—The Surveyor General established a point at the 
junction of the Arroyo Seco de los Capitancillos, and Arroyo 
de los Alamitos; thence in a straight line to a point at the foot 
of the low hill in the / center of Canada; thence in a straight 
line in a southerly direction to corner C. C., No. 2. These 
were the instructions I received from him. 

Q. 15.—Was the southern line of tne Rancho de los Capi¬ 
tancillos, as represented on this map, located according to your 
own judgment, or in acccordance with instructions from the 
Surveyor General ? 

A. 15.—Both in accordance with my own judgment and 
according to the instructions of the Surveyor General as I un¬ 
derstood them. 

Q. 16.—How did you ascertain the names given to the 
creeks upon this map ? 

A. 16.—I got them from the expedientes. 

JNO. LA CROZE. 

Subscribed and sworn to before me, this 17th April, 1857. 

cutler McAllister, 

U. S. Commissioner. 

The foregoing deposition is taken, subject to all exceptions. 

A. P. CRITTENDEN, 

Attorney for Fossatt. 


(Indorsed.)—Filed May 4th, 1857. 

John A. Monroe, Clerk. 

By W. H. Chevers, Deputy. 


75 


United States District Court, } 
Northern District of California, j 

The United States 

vs. 

Charles Fossatt. 

San Francisco, June 22, 1857. 

On this clay before J. Edgar Grymes, a Special Commis¬ 
sioner and Referee of the United States for the Northern Dis¬ 
trict of California, duly authorized to administer oaths, etc., 
etc., came Pedronilo Rios, a witness produced on behalf of the 
claimants in case No. 132, being an appeal from the Board of 
Commissioners, to ascertain and settle the private land claims, 
in the State of California, in case No. 340, on the docket of 
the said Board of Commissioners, and was duly sworn, and 
testified as follows, his evidence being interpreted by J. Edgar 
Grymes, by consent of respective attorneys : 

Present: A. P. Crittenden, for claimant, and U. S. District 
Attorney. 

Question by- 

Question 1.—What is your name, age and place of resi¬ 
dence ? 

Answer 1.—My name is Pedronilo Rios, 51 years old, and I 
reside in the San Luis Obispo county. 

Q. 2.—How long have you lived in California ? 

A. 2.-—I have lived here 33 years. 

Q. 3.— Please examine the paper noAV shown to you marked 
“P. R.,” which will be attached to this deposition, and say 
whether or not it is a true copy of an original map or plan, 
and how do you know it to be a true copy ? 

[Question objected to, and also the introduction of this paper, 
as it does not purport to be an original, and the original is not 
accounted for.] 

A. 3.—I know it is a true copy of the original, because I 
compared it myself this very day. 

Q. 4.—Where did you find the original to-day ? 

A. 4.—In the Surveyor General’s office. 

Q. 5.—Who made the original map, or diseho, of which this 
is a copy ? 

A. 5.—I myself made it, with my own hands. 

Q. 6.—Where were you when you made it ? 

A. 6.—In my own house, in Monterey. 

Q. 7.—For whom did you make it? 

A. 7.—For Justo Larios. 



76 

Q. 8.—Had you ever been upon the land of which you made 
the map or diseho? 

A. 8.—I have never been there before or since. 

Q. 9.—Had you any knowledge yourself of the localities re¬ 
ferred to and the objects designated on that diseho? 

A. 9.—I had no knowledge whatever, except by seeing the 
sierra, passing on the road from Monterey to Santa Clara. 

Q. 10.—Please to state how you made this diseno, having no 
knowledge of the objects designated on it ? 

A. 10.—I made it in conformity to Justo Banos’ direction. 

Q. 11.—How did Justo Larios give direction about the mak¬ 
ing of the diseno ; was it by describing the hills and streams, 
and other objects, or by showing you some other diseho by 
which you could copy ? 

[Question objected to as leading.] 

A. 11.—He gave me the idea verbally. 

Q. 12.—(The original diseno of which “Exhibit P. R.” is a 
copy, was here produced from the office of the Surveyor-Gen¬ 
eral, “ Expediente Ho. 294,” and witness is asked:) Is this the 
original referred to in your preceding answer as having been 
made by yourself? 

A. 12.—It is the same. 

[Objected to as irrelevant and incompetent.] 

Q. 13.—Who wrote the words written on this diseho “ Sierm 
del Encino,” u Arroyo Seco,” “ Arroyo de los Capitancillos,” 
“ Lindero de S’ta. Clara,” “ Partizuela Lomas Bajas,” “ Corral 
Viejo del finado Macario ” and “ Lindero del Senor Berreyesa ? 

A. 13.—I wrote them myself. 

Q. 14.—Why did not Justo Larios make the diseho himself? 

A. 14.—Because he could not handle the pen. 

[Ho cross-examination.] 

PETROHILO RIOS. 

Sworn to and subscribed before me, June 22d, 1857. 

J. EDGAR GRYMES, 

Special Commissioner. 


(Indorsed.) Filed July 18th, 1857. 

John A. Monroe, Clerk, 

By W. H. Chevers, Dep’y. 


United States District Court, ) 
Northern District of California. j 


The United States 

vs. 

Charles Fossatt. 

San Francisco, July 1st, 1858. 

On this day, before Richard Tobin, appointed a Special Com¬ 
missioner of the United States for the Northern District of Cal¬ 
ifornia, duly authorized to administer oaths, etc. etc., came Ja¬ 
cob R. Snyder, a witness produced on behalf of the United 
States, in case No. 132, being an appeal from the Board of 
Commissioners to ascertain and settle the private Land Claims 
in the State of California, in case No. 340 on the docket of the 
said Board of Commissioners, and was duly sworn and testified 
as follows: 

Present : The District Attorney and E. Randolph, Esq., as 
Attorney for claimant. 

Questions by the District Attorney. 

Question .—What is your name, place of residence, and what 
has been your occupation since you have been in California ? 

Answer .—My name is Jacob R. Snyder; I live in San Fran¬ 
cisco ; I have been engaged in various occupations since I have 
been in California. I had an appointment as land surveyor in 
the Middle District of California, under Col. Mason, who was 
then Governor of the Territory. 

Q.—Are you acquainted with that part of the country in 
which the land claimed in the case is situated; if so, state the 
mode and extent of your acquaintance with it. 

A.—I am. I made a survey of the Rancho de los Capitan- 
cillos, I think, in the fall of 1847, to the best of my recollec¬ 
tion. 

Q.—At whose request ? 

A.—The survey was made at the request of Grove C. Cook. 
He was owner of the ranch at that time. 

Q.—How did you proceed to locate the land ? 

A.—I proceeded under the direction of Grove C. Cook. I 
commenced at what was called the angle of the creek. I run 
from thence a straight line across the valley, touching the foot 
of a hill in or near the center of the valley, and from thence to 
the top of the mountain at a point where there is a bare rock 
cropping out with a perpendicular face to the north; in fact, I 


Y8 


put up on this rock a piece of white cloth, to be used as a sig¬ 
nal to obtain the bearing of the line. I remember it because 
there was scarcely earth enough on the rock to plant the stick 
in. That rock was a little to the east of the mine ; I mean by 
this that the line which ran through the rock was to the east of 
the quicksilver mine, which was on Cook’s Rancho, or what 
Cook claimed as his. I will state further that Cook was par¬ 
ticular in having that line run, as he said that he was under the 
impression that the mine was on his land. I then returned to 
the angle of the creek spoken of before, and run a traverse 
down the creek from the angle to its junction with the Arroyo 
Seco ; from thence I run a traverse up the Arroyo Seco until 
I got into the mountain where it became so bluff and perpen¬ 
dicular that I could not use the chain any longer; and from 
thence to the best of my recollection, I closed the survey by 
triangulation between the point on the creek where I stopped 
and the rock spoken of on the first boundary line. 

Q.—Who directed you in the running of these lines? 

A.—Grove C. Cook. 

Q.—Did you have with you the diseno of the Justo Larios 
Rancho, or a copy of it ? 

A.—No. 

[The witness is now shown a copy of the d ; seho and the fol¬ 
lowing question is asked.] 

Q.—Was the rock to which you ran your first line, beyond 
the point at which the creek, laid down on the diseno as the 
Arroyo de los Capitancillos, issues from the mountains? 

[This question is objected to by counsel for claimant, on the 
ground that the reference to the diseno is an improper mode of 
designating the stream and mountain mentioned in the ques¬ 
tion, the witness having shown himself fully acquainted with 
the face of the country and capable of giving the information 
sought in the clearest manner from his own knowledge.] 

A.—I cannot answer that question because I ran the line with¬ 
out any reference to the creek, but my impression is that the 
creek was some distance from the line and to the left of it, in 
running from the starting point. 

Q. IIow far up the mountain was this rock of which you 
speak ? 

A.—I cannot tell the distance; I do not recollect it; but it 
was on the brow of the mountain overlooking the valley. 

Q.'—At what part of the rancho was the settlement at the 
time ? 

A.—The house in which Grove Cook lived at that time was 
on the bank of the creek, a short distance below what is called 
the angle in the creek—the starting point. 


79 


Q-—What was the character of the mountain side, up which 
yon ran your first line to reach the rock ? 

A.—A portion of it was low hills, and the rest of the moun¬ 
tain was more abrupt. It was covered with a growth of oak 
trees. 

Q.—In running the first line, did you stop that line at a 
point where, as in this diseno, the arroyo is represented as 
coming out on a plain, or did you go on up the mountain side ? 

[This question is objected to by claimant’s counsel, because 
it refers to the diseno as before objected.] 

A.—If these hills on this diseSo are intended to represent 
the low hills coming down into the plain or valley on the south, 
then I run my line over the hills into the mountains. 

Cross-Examination. 

Q.—When you closed your survey, did you embrace the 
land which, in 1847, Grove C. Cook claimed as his rancho ? 

A.—I did. 

Q.—Was the quicksilver mine, now called New Almaden, 
inside or outside of that survey ? 

A.—Inside. 

Q.—Was the range of hills, in which are situated the Abrigo 
Mine, (now called the Guadalupe Mine,) the San Antonio Mine, 
and the said New Almaden Mine, inside or outside of that 
survey ? 

A.—The Abrigo or Santa Clara Mine, the Guadalupe Mine, 
and the Almaden Mine were inside of that survey. The other 
I know nothing about. 

Q.—How is the ridge, in which are situated the mines to 
which you have referred, separated from the main sierra? 

A.—To the best of my recollection a portion of it is separated 
from the main sierra by the Arroyo Seco, and a portion of it 
is connected with the main sierra by a divide at the head waters 
of the aforesaid creek. 

Q.—On the other side of that divide how is the continuation 
of the said range of hills separated from the main sierra ? 

A.—I am unable to say. At the one side of the divide are 
the head waters of the creek which assists in forming the an¬ 
gle at the point of beginning; on the other side of the divide 
are the headwaters of the Arroyo Seco. 

Q.—Was not this land which you surveyed, and which was 
claimed by Grove C. Cook, in 1847, then used as a grazing 
rancho ? and were there not cattle grazing at that time in the 
said range of hills in which are situated the said mines ? 

A.—It was used as a cattle ranch, and there were cattle 
grazing on the hills spoken of. 


80 


Q.—In the survey which you made, how did you establish 
the southeastern corner ? 

A.—It was established by triangulation and calculation. I 
did not go over the ground ; I took the rock as one point on 
the eastern line, and the point at the head of the Arroyo Seco 
on the southern line, and, by a calculation, prolonged those 
two lines until they intersected each other, and sent a man to 
the point of intersection; a flag was planted there, and that 
was the southeast corner. 

Q.—Was that point of intersection north or south of the 
Arroyo de los Alamitos ? or rather did the eastern line extend 
to that point of intersection across the creek, and terminate on 
the slope of the main sierra ? 

A.—To the best of my recollection I think it did. 

Re-Examination. 

Q.—Did you cross the divide you have spoken of longitu¬ 
dinally so as to observe the connection of the mining edge 
with the other mountains ? 

A.—I did not. 

Q.—Then you are unable to speak of the connection between 
them? 

A.—I am unable from personal examination. 

Q.—Do you know the distance at which cattle were in the 
habit of ranging among the mountains in that neighborhood at 
the time of which you speak ? 

A.—I have seen them on both sides of the Arroyo Seco, and 
I cannot say how far they went into the mountains. 

Q.—What quantity of land was contained in the survey 
which you made ? 

A.'—To the best of my recollection there was about two 
leagues. 

Q.—Were the instruments you employed in the survey, of an 
accurate description ? 

A.—No. 

Examination closed. 

JACOB R. SNYDER. 


Sworn to, and subscribed before me, this first day of July, 
1858. 


RICHARD TOBIN, 

Special Commissioner. 


(Indorsed.) Filed July 3d, 1858. 

W. H. Chevers, Clerk. 


81 


I, W. II. Che vers, Clerk of tlie District Court of the United 
States for the Northern District of California, do hereby certify 
the writings annexed to this certificate to be true and correct 
copies of their respective originals now on file and remaining 
of record in my office. In testimony whereof I have hereunto 
set my hand, and affixed the seal of said Court, this 10th day 
of August, A. D. 1858. 

W. H. Chevers, Clerk. 


United States District Court, 

Northern District of California. 


The United States 

vs. 

Charles Fossat. 

San Francisco, Sept. 5, 1855. 

On this day, before John A. Monroe, Commissioner of the 
United States for the Northern District of California, duly au¬ 
thorized to administer oaths, etc. etc., came Pedro Chavoya, a 
witness produced on behalf of the claimant in case No. 132, 
being an appeal from the Board of Commissioners to ascertain 
and settle the Private Land Claims in the State of California, in 
case No. 340 on the Docket of the said Board of Commissioners, 
and was duly sworn and testified as follows, his evidence being 
interpreted by H. Ader, a sworn interpreter. 

Present: A. C. Crittenden, for claimant, and A. Glassell 
and A. C. Peachy for the United States. 

Question by A. P. Crittenden. 

Q.—What is your name, age and place of residence ? 

A. I am 67 years of age, reside in San Jose. 

I have lived in the city of San Jose since the year 1823. I 
have lived in San Jose since I was sixteen years of age, except 
from the age of sixteen until 1822 I lived at the Presidio as a 
soldier, near San Francisco. I have been Alcalde at San Josd 
for one year. At one time, I think the year 1835, and at an¬ 
other, 1846 or 1847, I do not recollect exactly. I know the 
Rancho de los Capitancillos. It was owned by a man named 
Leandro Galindo. 

[The answer is objected to by the counsel on behalf of the 
United States.] 

Q.—Who first lived on the rancho after it was granted ? 

6 



82 


A.—The same, with his family, and after them a man called 
Jnsto Larios lived there; then a man called Cook lived there. 
I lived about one league from them. I have known the 
rancho from the time I first came to reason, as far back as 
I can remember. Nearly all my lifetime I have known the 
rancho and have been upon it to cut wood, etc. I have gone 
there for cattle and some of my cattle were on the rancho; 
have been there on a great many occasions, but don’t recol¬ 
lect how often. I know the streams and hills, etc., well, in 
the locality ; I know, on this rancho, the Sierra del Encino; it 
runs from south to north; I don’t know the exact direction, 
but it is nearly north and south. The principal reason of its 
being so named is because there was a tree distinguished from 
all others and could be seen from all parts of the rancho; it 
was a very high tree. I suppose the tree was well known as 
a land mark, it was an encino tree. The Sierra del Encino 
was first called Sierra Azul, and in the middle of it was that 
tree. The tree is now there. The whole sierra is called the 
Sierra Azul, and in the middle of it is this tree, and that part 
of it is called the Sierra del Encino. The house of Justo La¬ 
rios and Cook was about the middle of the rancho on the banks 
of a creek running from the hacienda of Almaden. In going 
from the stream on which the house stands to the Sierra del 
Encino you have to cross a hill, and going down this hill you 
cross another creek, and then begins the Sierra del Encino. 
This hill is a continuance of low hills which commence at Al¬ 
maden and end at this creek. The Almaden mines are in this 
low range of hills. I know it because we have been the dis¬ 
coverers of these mines. The Guadalupe and San Antonio 
mines are in the same range of hills to the north of Almaden. 
Formerly the hills were called Cuchilla, and now it is called 
Nueva Almaden. 

Q.—Is the Cuchilla a part of the Sierra Azul or Sierra del 
Encino, or is it a distinct and separate range ? 

[Objected to.] 

A.—It is entirely distinguished by itself. 

The Sierra Azul is higher than the Cuchilla de Almaden, 
and they are separated by a creek called on the lower part the 
Arroyo de los Capitancillos, and the other part was called the 
Arroyo de Gallindo. It is generally known now as the Ar¬ 
royo de los Capitancillos. A creek passes near the mines of 
Guadalupe, the same creek I have spoken of. The water runs 
all in the same direction between the Sierra and the Cuchillas. 
The creek which runs near the Guadalupe mines is not the 
same as that which runs near the Almaden. There are two 
creeks, one running round one end of the Cuchilla and the 


83 


other running round the other end and meeting below. The 
name of the creek nearest to the Guadalupe, round the end of 
the Cuchilla is called the Arroyo de los Capitancillos. The 
other creek has no name, and the name of the creek which 
runs nearest the house of Justo Larios is the Arroyo de Alma- 
den. The encino is situated about half way from the foot of 
the hills going up the Sierra Azul. 

I know a place called the Sierra de los Encinos, and it is 
called so because it is covered with oaks, and it divides two 
ranchos, those of Bernal and Capitancillos. The Sierra de los 
Encinos is on the opposite side of the creek on which Justo 
Larios lived from the Cuchilla de Almaden. It has no other 
name. They are called from the ranchos, respectively. The 
general name of the creeks after they join, is Arroyo de los 
Capitancillos. 

Cross-Examined. 

It is more than a league from the eastern to the western end 
of Justo Larios’ Rancho. 

Q.—What is the western boundary of Justo Larios’ Rancho? 

[Objected to.] 

A.—The Sierra Azul, on the side towards San Jose. From 
Justo Larios’ house to the first hills I have spoken of, is a short 
distance; about one mile and a half. I know the Pueblo Hills; 
I live near there. Those hills belong to my rancho, which is 
called Poso de San Juan Bautista. They are not the same 
hills as those between Berreyesa and Bernal ranchos; on the 
one side they are called one name, and on the other another 
name. I know the hills which separate the rancho of Larios 
and Santa Teresa; they are called Capitancillos Hills, on one 
side, and on the other, the Santa Teresa. 

Q.—Who do the hills belong to ? 

[Objected to.] 

A.—On one side they belong to Justo Larios and Berreyesa, 
and on the other to Bernal. Justo Larios, I do not know 
ever claimed them as a part of his rancho. I have been on 
those hills only a few days ago; on the top there is an oak 
tree which is the mark of the dividing line of three ranchos 
those of Larios, Bernal, and Berreyesa; it is about the entry of 
the Puertosuelo of the Capitancillos; it is on the east side; Justo* 
Larios had cattle on the rancho. It is impossible for me to say 
how much level land there was; I never measured it, but I should 
think there was a league, more or less. The whole land, com¬ 
prising hills, was a league and one half, more or less. This- 
includes the hills of Capitancillos, and the hills which separate 
the rancho from the Santa Teresa Rancho. I know the hill 


84 


of the Mine; we were the discoverers of the mine. From the 
foot of the arroyo the top of the hill is about 1500 varas; I 
mean in a perpendicular line. 

Direct Examination Resumed. 

The hills which divide the Ranchos of Santa Teresa and de 
los Capitancillos, are the same hills I have spoken of as the 
encinos. It is not generally known by that name ; sometimes 
they call it the slaughter house. I had a slaughter house up 
there. None of it is called Sierra de los Encinos; they may 
call it so now because it is grown over with oaks. (The witness’ 
attention being directed to that part of his testimony referring 
to the de los Encinos.) I called it that because I know it to be 
covered with oak, but that is not, and never was the general 
or legitimate name. The range I speak of as Cuchilla de Al- 
maden, never was known as the Sierra de Encinos. I know 
the tree I have spoken of to be the boundary, because I have 
heard it said to be, but was not there when it was measured. 
The tree is not marked that I know of; never heard Justo 
Larios say it was his boundarv. 

(Signed) " PEDRO CHABOYA. 

Adjourned to September 6th, 1855. 


September 6th, 1855. 

Present:—A. P. Crittenden, for claimant, and A. Glassell 
and A. C. Peachy, on behalf of the United States. 

Jose Fernandez, being duly sworn, deposes and says:— 

I am fifty-six years of age, and live in Santa Clara; I have 
lived in California thirty-eight years, between San Francisco 
and Monterey; have lived in both places, and in the country 
between ; have lived in Santa Clara since 1886, and lived there 
before that time. 1 have been Alcalde and Secretary of the 
Tribunal at Santa Clara. Have known the Rancho of Capi¬ 
tancillos since 1836. The children of Leandro Galindo first 
lived on the rancho; afterwards Justo Larios lived there. 
When the children of Galindo lived there, there was a house, 
and cattle, and a corral. Don’t know that they cultivated 
land. The father lived at the Mission, and was Mayordomo. 
Justo Larios had a house there, when he lived there. Justo 
Larios lived in a house which he built on the bank of a 
creek. Galindo’s children lived in a house on the same creek, 
further down ; can’t tell the distance. I know the general out¬ 
side view of the rancho. I know the names of some of the 



85 


mountains, and creeks, and hills, in the vicinity. Have often 
been on the rancho. Don’t know any hills called the Sierra 
del Encino; know the Sierra Azul; another part of the Sierra 
Azul is called Encino Coposo, which is about half way up on 
the rise of the sierra. It is called so because there is a tree 
which is higher than all others in the vicinity; the tree is an 
encino, a certain kind of oak. The tree is well known by all 
the inhabitants in the vicinity, and can be seen at a great dis¬ 
tance from Santa Clara, and also from the Pueblo. 

I know the country between the creek, on which is Justo 
Larios’ house and the Sierra Azul. I have only a short time 
since known the creek by the name of Arroyo de los Alamitos. 
There is between the creek and the Sierra Azul a small 
plain. There is in one part of it some small hills ; on the west 
side of Justo Larios’ house there are some low hills. I have 
been along the foot of the hills. There is a creek there called 
the Arroyo de los Capitancillos. There are some low hills 
between the house of Justo Larios and the Arroyo de los 
Capitancillos. The creek rises in the Sierra Azul; one arm 
follows the sierra, and three or four branches join in the same 
arroyo, and follow the foot of the sierra. The distance from 
the low hills and the arroyo. One branch of the arroyo begins 
at the low hills. The hills are now called the Cuchilla de 
Almaden. It had another name—Cuchilla de la Mina de Luis 
Chavoya. Never heard it called by any other name. Never 
heard it called Sierra de los Encinos. I know where the 
Guadalupe and the Almaden mines are. They are in the 
same cuchilla I have spoken of. I don’t know in that vicinity 
any Sierra de los Encinos. I think Justo Larios went to live 
in the rancho in 1841 or 1842. He lived there till he sold it 
to Captain Cook, and then Cook lived there. 

Cross-Examined. 

Galindo’s house was on the branch of a creek opposite a hill 
called La Mojonera del Pueblo. I know the hill between the 
rancho of Santa Teresa and Justo Larios; it is called Santa 
Teresa. There is an arroyo at the foot of the hill on which 
Justo Larios’ house is situated. It is called the Arroyo de los 
Alamitos. I don’t know any arroyo which passes through the 
rancho of Berreyesa; don’t know the rancho. Have been 
there once, but don’t know the rancho. I went once to. the 
house of Berreyesa to arrest a man. Have been several times 
at Justo Larios’ house. The Arroyo de los Alamitos is called 
Arroyo Seco when it dries up. There are hills on the northern 
side of Justo Larios’ house; don’t know their names. They 
may form a part of the rancho of Narvaez; but I don’t know. 


86 


Can’t say how much level land there was. I don’t know the 
limit of the rancho—only the locality. The creek was to the 
east, and the house to the west—on the same side as the Sierra 
Azul; the house of Justo Larios on the same side. The creek 
generally dries up about this season of the year. 

The Arroyo de los Capitancillos does not unite with the Ar¬ 
royo de los Alamitos, unless they unite on the rancho of 
JlT ciry^Gz 

(Signed) JOSE FERNANDEZ. 


Nazario Galindo, being sworn, deposes and says : 

I am forty years of age, and live on the rancho of Agua 
Caliente, near the Mission of San Jose. I have always lived 
in California; have lived in San Jose, Santa Clara, and San 
Francisco. My father’s name was Leandro Galindo. I know 
the Rancho de los Capitancillos. I have known it since the 
year 1825, when my father established the rancho. I lived 
with my brother on the rancho. I lived there from 1825 to 
1832, at which time I enlisted as a soldier, and came to San Fran¬ 
cisco. My father and his family lived there till he sold it to 
Justo Larios. We built a house there, with corrals, and sowed 
wheat there. My father gave possession to Justo Larios. The 
house was at the entry of the Canada, opposite a hill called 
Mojonera del Pueblo. There was a creek called Arroyo de 
los Alamitos there. The house was on the side towards the 
Sierra Azul. I know the names of the hills, etc., on the 
rancho. I know on the rancho a place called El Encino. It 
is half way up on the rise of the Sierra Azul, near the rancho. 
There is a stream called the Arroyo de los Capitancillos at the 
foot of the Sierra Azul. In going from the Arroyo de los 
Capitancillos, we cross the hills where the mines are. The 
hills are called the hills of the mines. The place I speak of is 
called encino because there is a very high tree, distinguished 
from all other trees around there. The place is well known 
in the neighborhood. Very often three or four gathered there 
for hunting cattle. We passed there very often. It is in the 
Sierra Azul. I do not know where the mines aTe. I only 
know they are on the Cuchilla. I mean by Cuchilla las Lomas 
de la Mina. They also call it los Lomas de la Mina de Luis 
Chavoya. It was called this latter name because Luis Cha- 
voya discovered the mines. Never heard them called by any 
other name. Never heard them called Sierra de los Encmos. 

Q.—Is this Cuchilla the same as the Sierra Azul, or is it a 
separate range? 

[Objected to.] 




87 


A.—It is right at the foot of the sierra, with a creek be¬ 
tween. I know a creek running through the Berrejesa rancho 
—it joins the Alamitos. Don’t know the name of the junction. 
I know the Arroyo de los Capitancillos ; it comes out between 
the Sierra Azul and the Cuchilla de la Mina. It runs down 
and joins the Arroyo de Alamitos, near Narvaez’s rancho. 
Don’t know the name of the creek running through the Ber- 
reyesa rancho. I know the Arroyo Seco ; it is the same as the 
Arroyo de los Alamitos, and it dries up about this season of 
the year. 

Cross-Examined. 

Don’t recollect how old I was when I went to live on the 
rancho. It was in the year 1825, and I lived there until 1832. 
Have never returned to the place since my father sold it. The 
last time I was there was in 1833. Don’t recollect when the 
mine was discovered. It was before I lived on the rancho. 
It was said that it was a quicksilver mine. I was at the mine 
once, in 1826 or 1827, looking for cattle. Berreyesas had not 
then come to their rancho. The names of the arroyos of which 
I have spoken, were the Arroyo de los Capitancillos—bore 
that name at that time. The water runs along the hills, and 
dries up below at a certain season of the year. That part of 
the arroyo which comes from the hills to where it dries up, I 
don’t know the name. The house was built on the Arroyo 
Seco. 

Q.—Have you been on the rancho before you came here to 
testify ? 

A.—No ; not since 1833. 

(Signed) NASARIO GALINDO. 


Jose Sepulveda, being duly sworn, deposes and says:— 

I am forty-seven years of age, and live in the pueblo of San 
Josd. Have lived all my life in California—in the pueblo of 
San Jose. I know the Rancho of Capitancillos. Have been 
there very often, because we crossed there looking for cattle, 
and also for soap root. I know the names of some of the hills, 
arroyos, etc., in the vicinity. I know the encino. It is half way 
up to the Sierra Azul. I always heard it called so by the old 
people—being in the middle of the Sierra Azul. The Sierra 
Azul is the same from which runs the Arroyo de los Capitan¬ 
cillos, opposite the hills called the Cuchilla de la Mina. I have 
not seen the Guadalupe mines ; have seen the Almaden. The 
Almaden mines are in the hills called La Cuchilla de la Mina 



88 


de Chavoya. I never heard it called anything but La Cuchilla 
de la Mina de Chavoya. Never heard it called Sierra de los 
Encinos. 

(Signed) JOSE [X] SEPULVEDA. 

mark. 

Witness: 

(Signed) Hipolito Adler. 


Miguel Narvaez being duly sworn for the claimants, de¬ 
poses and says: — 

I am forty-five years of age, reside on the Rancho of San 
Juan Bautista, which belongs to my father, Jose Agustin Nar¬ 
vaez. I have been in California all my life, part of the time 
in San Jose, and the rest on said rancho. I know the Rancho 
of Los Capitancillos; it adjoins that of my father. I know the 
names of the different arroyos, hills and mountains on the 
rancho and in the vicinity of Los Capitancillos. I know the 
place called El Encino; it is on the Sierra Azul. It is so called 
because it is the most beautiful tree, and is seen the furthest 
off. There is a stream at the foot of the sierra called El Arroyo 
de los Capitancillos. It runs down to and joins the other arro- 
yo, between the hills. The water runs in it all the year, and 
below the hills it dries up. I know where the establicimiento 
of Santa Clara is; it is in Santa Clara, near the pueblo. The 
arroyo of Los Capitancillos separates the rancho of Agustin 
Navaez from that of Justo Lari os. On the lower part, this 
stream is also called the Arroyo Seco. It runs between the 
Sierra Azul and the cuchilla of the mine of Luis Chavoya. 
Knows that the Almaden and Guadalupe mines are in the said 
hills. These hills, ever since I have known them, have been 
known by the aforesaid name. It has never been known by 
the name of Sierra or Sierra de los Encinos. 

(Signed,) MIGUEL NARVAEZ. 


Gabriel Cibrian, being duly sworn for the claimants, de¬ 
poses and says: — 

I am thirty-six years, and live in the County of San Fran¬ 
cisco on the ranch of Dona Carmen. I have lived in California 
all my life-time, in the Pueblo of San Jose. I know the Ran¬ 
cho de los Capitancillos. I have been on it often. I lived on 
the Rancho of Berreyesa, adjoining the Rancho de los Capitan¬ 
cillos, three years more or less. I know the names of hills and 




89 




streams in the Rancho de los Capitancillos and in the vicinity. 
I know a place called “El Encinoit is about midway from 
the foot of the Sierra Azul. It is out of the limits of the .Ran¬ 
cho de los Capitancillos, but near it, and can be seen from it. 
The Sierra Azul is from the Rancho de los Capitancillos, on 
the side where the sun sets. There is a stream at the foot of 
the Sierra, called Arroyo de los Capitancillos. There are hills 
on the opposite side of the arroyo from the sierra called the 
Cuchilla de la Mina de Luis Chavoya. Never heard them called 
by any other name. I know where the Almaden mine is. It 
is on the upper part of the Cuchilla, where comes out the Ar¬ 
royo de los Alamitos. The water runs in the Arroyo de los 
Capitancillos, inside of the sierra, all the year round, and below 
it is dried up. The part where it dries up is called the Arroyo 
Seco. There is a creek running through the Rancho of Ber- 
reyesa; it joins the Arroyo de los Alamitos. I never knew 
the name. It is a small creek called Arroyo Seco. 

Cross-Examined. 

I lived on the Rancho of Berreyesa about the year 1834 or 
1835. I heard the Cuchilla named the Cuchilla de la Mina de 
Luis Chavoya before I went to live on the Berreyesa Ranch. 
I had seen it before I heard it named. I was then eight or 
nine years old. I heard Luis Chavoya and my father name it 
so. Luis Chavoya called on my father to examine the metal 
he had found there, because my father was from Guadalajara 
and knew what metal was. He took me to go into the cave to 
examine it. I did not hear it so named at that time, but did 
a short time afterwards. It was in San Jose I heard it. I 
passed by the Rancho de los Capitancillos last year, going to 
the Almaden Mine. I have had no conversation lately with 
any one telling me the names of these places. I heard the 
depositions of these witnesses here. 

(Signed,) GABRIEL CIBRIAN. 


Mariano Padilla, being duly sworn for the claimants, 
deposes and says: — 

I am forty-five years old. I live in the Pueblo of San Jos 6 . 
I have lived all my life-time in California, in the Pueblo of San 
Jose, and the Rancho of San Juan Bautista, the Rancho of 
Agustin Navaez. I know the Rancho de los Capitancillos 5 it 
adjoins the Rancho of Navaez. I know the names of the hills 
and streams on the Rancho de los Capitancillos. I know where 
the Arroyo de los Capitancillos is; it is between the Cuchilla 



# 


90 

de la Mina de Lnis Chavoya and the Sierra Azul. On the 
lower part it adjoins the Arroyo de los Alamitos. The water 
in the Arroyo de los Capitancillos runs at this time of the year 
all along the hills, and below that it dries up. It bears this 
name through all its course. The Cuchilla de la Mina de Luis 
Chavoya is on one side of the Arroyo de los Capitancillos. I 
know where the Sierra Azul is. It is the other side of this 
arroyo. I know a place called “ El Encino.” It is in the Sierra 
Azul, about midway of the sierra, more or less. The Cuchilla 
of which I have spoken is called the Cuchilla de la Mina de 
Luis Chavoya. I never heard any other name for it. I never 
heard it called the “Sierra,” nor the “Sierra de los Encinos.” 
I know where the house is in which Justo Larios lived. It is 
on the bank of the Arroyo de los Alamitos, on the side on 
which the sun sets. On the same side as the Sierra Azul, on 
the other side of the arroyo, beginning on the bank, are hills 
called Cuchilla de Santa Teresa. Never heard any other name 
given to those hills. This Cuchilla extends in the direction of 
San Jose, to the point where the Arroyo de los Capitancillos 
joins the Arroyo de los Alamitos. No part of this Cuchilla 
bears any other name. Never heard it called any other name 
by the Bernals. I know where the Matadero de Pedro Cha¬ 
voya is. It is on the Cochilla, on the upper part, where there 
is an oak grove. 

(Signed,) MARIANO [X] PADILLA. 

mark. 

Witness: 

(Signed,) Hipolito Adler. 

[Indorsed.] Filed September 13th, 1855. 

John A. Monroe, Clerk. 

By W. H. Chevers, Deputy. 


United States District Court, ) 
Northern District of California. j 

The United States 

vs. 

Charles Fossatt. 

San Francisco, July 2d, 1858. 

On this day, before J. Edgar Grymes, a Special Commissioner 
and Referee, appointed by the District Court of the United 



91 


States for the Northern District of California, duly authorized 
to administer oaths, etc. etc., came Charles T. Healey, a witness 
produced on behalf of the United States, in Case No. 132, being 
an appeal from the Board of Commissioners to ascertain and 
settle the Private Land Claims in the State of California, in 
Case No. 340 on the docket of the said Board of Commission¬ 
ers, and was duly sworn and testified as follows: 

Present : P. Della Torre, Esq. U. S. District Attorney, and 
Edmund .Randolph, Esq., for Claimant. 

Questions by District Attorney. 

Question 1.—What is your name, age and place of residence? 

Answer 1.—Charles T. Healey; twenty-four years old, and 
I reside in San Jose, Santa Clara Countv. 

Q. 2.—What is your occupation? 

A. 2.—I am County Surveyor of Santa Clara County. 

Q. 3.—Are you acquainted with the Rancho of Justo Larios, 
being the land named in this case ? 

A. 3.—Yes, sir. 

Q. 4.—Are you acquainted with the topography of that ranch 
and of the surrounding country ? and, if so, please describe it. 

A. 4.—I am acquainted with it. In that vicinity there are 
two creeks or branches, which are the boundaries of the north¬ 
ern side of the valley in which the Justo Larios Ranch is situ¬ 
ated ; and upon the southern side of said valley there is a range 
of mountains. There is also a range of hills running along the 
north-east side of said valley, on the north-east side of the creek. 

Q. 5.-—Do you know the range of mountains on which are 
situated the New Almaden, Guadalupe and San Antonio Mines? 

A. 5.—Yes, sir. 

Q. 6.—Are the mountains in which those mines are situated 
part of the sierra which lies to the southward of said rancho ? 

[Question objected to by claimant’s counsel, as leading.] 

A. 6.—According to my understanding of the manner in 
which descriptions are given of mountains generally, they are. 

Q. 7.—Describe the connection and relative position of the 
mining range to the other mountains lying to the southward of 
said rancho. 

[Witness is requested to look at the map made by W. J. 
Lewis in this case.] 

A. 7.—The mountains in which the mines are situated, are 
connected with the main sierra or mountain by a ridge which 
is but three or four hundred feet lower than the highest point 
of the hills in which the mines are situated. The hills in which 
the mines are situated are separated from the main Sierra only 


i 


92 


by ravines or gulches, in which these creeks first spoken of have 
their source, and are not wholly cut off from the main moun¬ 
tains by those. They also partake generally of the same char¬ 
acteristics of the main mountains, being in many places quite 
rugged and precipitous. There are no valleys tying between 
the main mountains and the hills in which the mines are situ¬ 
ated. The ridge first spoken of is the water-shed, from which 
the waters run northerly and southerly into the two creeks first 
spoken of. 

Q. 8.—What is the topographical formation of the sierra gen¬ 
erally ? 

[At this point the claimants’ counsel objects to the examina¬ 
tion of witness by the counsel who, at the request of the District 
Attorney, has propounded the foregoing question, because he 
is the counsel of the New Almaden Company who are also 
claimants of this land, or portion of it, and whose interests are 
therefore adverse to the claimant in the present case. 

Mr. A. C. Peachy, the gentleman .who is requested by Col. 
Della Torre to propound the foregoing question during the 
District Attorney’s temporary absence from this room on busi¬ 
ness, desists from urging an answer until the court can have the 
opportunity to pronounce upon the validity of the objection. 

Before the above question had been put, the District Attor¬ 
ney had been called from the room where the deposition had 
been taken, by other and urgent business of his office, stating, 
before he left the room, that he left a question to be put to the 
witness during his absence, to which no objection was taken 
at that time. 

The counsel for claimants being willing in all matters to 
oblige the District Attorney, still feels it incumbent upon him 
to claim the benefit of the opinion of the Supreme Court of the 
United States rendered in this case. 

The above question is again repeated by the United States 
District Attorney.] 

Upon motion of Edmund Randolph, Esq., claimants’ counsel, 
the examination is adjourned until to-morrow at one o’clock. 

(Signed) J. EDGAR GRYMES, 

Special Commissioner. 


San Francisco, July 3d, 1858. 

This question being submitted to the Court, and the Dis¬ 
trict Attorney and Mr. E. Randolph having been heard, the 
Court declined to interfere with the exercise of the District 



93 


Attorney of a discretion to avail himself of the assistance of, 
or be represented by, any gentleman of the bar, at the taking 
of depositions or on the hearing of any cause. 

Examination Eesumed from Yesterday. 

Present: United States District Attorney and Edmund Ran¬ 
dolph, Esq., and A. P. Crittenden, Counsel for Claimant. A. 
C. Peachy, also, appears for the United States. 

Question 8 is again repeated by the United States District 
Attorney. 

A.—The sierra consists of irregular broken ridges and peaks, 
intersected by numerous ravines and gulches. The higher 
portions of the mountains covered with chapparal, with but 
little timber, and the lower portions, in places, covered by wild 
oats. According to my judgment the highest peaks have an 
altitude from 8 to 4,000 feet above the tide. I think the gen¬ 
eral course of the range is southeast. There are numerous 
spurs running out into the valley, to the northeastward, con¬ 
nected with the main range. There are several small streams 
which have their source in these mountains, but which sink 
and are dried a portion of the year, upon the plains. In some 
of the gulches red wood is found ; cinnibar is also found in 
these mountains. 

Q. 9.—Examine the diseno on hie in this case, and say if 
the range called Sierra del Encino thereon is capable of being 
located by means of the other natural objects delineated on said 
diseno ? It you answer in the affirmative, state what are said 
natural objects and what range according to said diseno is the 
southern boundarv of the said land. 

[Question objected to, on the grounds that it asks merely the 
opinion of the witness, and that it asks his opinion, founded 
upon the diseno alone, without reference to the grant.] 

A. 9.—I think that the Sierra del Encino is capable of being 
located by means of the other natural objects, because, upon 
the diseno the two creeks are delineated as though a continua¬ 
tion of their lines would partially embrace that portion of the 
sierra in which the mines are situated, and because they are 
represented as lying southwardly from the junction of the said 
creeks called Capitancillos and Arroyo Seco ; also, from the 
position of the hills called “Lomas Bajas.” I should say that 
that range of mountains or hills in which the New Almaden 
mines, Guadalupe mines and San Antonio mines, or the north¬ 
ern slope, or foot of said range—or, in general terms, the range 
itself, is the southern boundary of said rancho, according to 
the diseno. 


94 


Q. 10.—Do you recollect the location of the range of moun¬ 
tains in which the said mines are situated with reference to the 
water courses delineated upon the diseho ? 

A.—I do, to some extent. 

Q. 11.—What range of mountains is it that the two creeks 
pass through last on their entrance into the plain or Canada. 

[Objected to, on the ground that the question assumes that 
the two creeks passed through a range of mountains, and that 
a plain or Canada are the same thing, both which presump¬ 
tions are not true.] 

A.—They issue from the range of mountains in which the 
mines are situated. 

Q. 12.—Look upon the diseho, and state what direction the 
streams upon it take, beyond the points at which they are rep¬ 
resented thereon. 

[Objected to, on the ground that the question is one that is 
impossible to answer, as looking at the diseho can furnish no 
information as to the course of streams not delineated on it.] 

A.—There being no points of compass written on the diseho, 
I cannot explain it intelligibly by making use of the terms 
north, south, east or west alone. 

Q. 13.—Assuming the mountains marked on the diseho as 
Sierra del Encino, to be the southern part of the diseho with 
the other points of the compass relative to such position, can 
you now answer the question ? 

A.—The general course of the streams appears to be from 
the southward. 

Q. 14.—Look upon the map of survey, filed in this case, as 
made by W. J. Lewis, and say if you can identify the points 
at which those two streams issue from the mountain. 

A.—I can. 

Q. 15.—Please designate those points ? 

A.—According to one view in the matter, you might sav in 
the vicinity of Walkinshaw’s house is the point which the 
arroyo of the Alamitos leaves the mountains. The Arroyo 
Seco may be said to leave the mountains at a point marked 
“furnace.” 

Cross-Examination by A. P. Crittenden one of the 

COUNSEL FOR CLAIMANT. 

Q. 1.—When did you come to California? 

A.—In 1852. 

Q. 2.—Where were you educated ? 

A.—I was educated in the State of Vermont. 

Q. 3.—What opportunities have you had of acquiring knowl¬ 
edge of surveying? 


95 


A.—From my attendance at school, and knowledge of math¬ 
ematics obtained at school; from my haying been engaged in 
the manufacture of mathematical instruments, and from the 
practice which I have had with my brother, who is a surveyor 
in this country. 

Q. 4.—Have you made many surveys yourself? 

A.—I have. 

Q. 5.—Have you any experience in the location of land 
claims in California? 

A.—I have never been appointed a United States Deputy 
Surveyor, but have made surveys in part, and assisted in the 
surveys of several. 

Q. 6.—Have you resided in Santa Clara all the time since 
your arrival in California? 

A.—Yes, sir; with the exception of a few months. 

Q. 7.—At what place in Santa Clara? 

A.—In the town of Santa Clara, and vicinity, and in the city 
of San Jose. 

Q. 8.—How often have you been on the land claimed in this 
case? 

A.—Very frequently. 

Q. 9.—How often have you ever passed along between the 
main sierra, and the range of hills, in which the Almaden, San 
Antonio, and Guadalupe Mines are situated? 

A.—I have freqently been at a point upon the creek, above 
the Guadalupe Mines, and upon one occasion, passed along the 
ridge connecting the hills, in which the mines are situated, with 
the main sierra. 

Q. 10.—Did you ever pass around the range of hills in which 
the mines are situated; I mean the whole distance going up 
the head waters of Arroyo Seco and down the head waters of 
the Alamitos? 

A.'—I never had strictly followed their courses, but have 
been in positions, frequently, where I could see them. 

Q. 11. —When was it that you were on the ridge connecting 
the sierra with the range of hills in which the mines are sit¬ 
uated ? 

A.—In the month of June, 1858. 

Q. 12.—Who was with you? 

A.—Mr. Young and Mr. Rogers. 

Q. 13.—What Mr. Young, and what Mr. Rogers; where do 
they live, and what do they do ? 

A.—Mr. John Young, who resides at the Mine, and is, I un¬ 
derstand, the Superintendent of the Mine, and Mr. Rogers who 
was introduced to me as Mr. Rogers, and of whom I know 
nothing further of my own knowledge. 


96 


Q. 14.—At whose request did you go there, and for what 
purpose ? 

A.—At the request of Mr. Young, who wished me to acqaint 
myself with the topography of the country. 

Q. 15—Did you go as a surveyor, employed for the purpose, 
and for compensation ? 

A.—I so understood it at the time the application was made, 
though no definite contract was made. 

Q. 16.—For whom did Mr. Young act, in employing you? 

A.—I do not remember that particular reference was made 
to any parties, except that it was probable that I should be 
called upon to testify in relation to the Justo Larios claim. 

Q. 17.—You look to Mr. Young, do you not, for compensa¬ 
tion for your services and time, in making an examination of 
that section of the country, for the purpose of acquainting your¬ 
self with its topography? 

A.—Yes, sir. 

Q. 18.—Had you any papers before you at any time, or were 
any exhibited to you ? 

[Question objected to, as not being in cross-examination of 
anything stated by the witness, in his direct examination.] 

A.—No, sir. 

Q. 19.—Had any papers or map been exhibited to you pre¬ 
viously to your going on the ground ? 

A.—None, except the maps of Mr. Lewis, and a pencil copy 
of the diseno of Justo Larios. 

Q. 20.—Who exhibited those to you, and where? 

A.—Mr. Young, at his office, at the Almaden Mines. 

Q. 21.—When was it that he exhibited them to you; how 
long before you went on the ground ? 

A.—The same day. 

Q. 22.—For what purpose did Mr. Young exhibit to you the 
map made by W. J. Lewis? 

A.—For the purpose of determining the route we should 
take over the hill, and distance we would have to go, and of 
ascertaining my views of its correctness, from my previous 
knowledge of the country. 

Q. 23.—Was there any one else present at the time when Mr. 
Young exhibited to you that map and diseno; if yes, who? 

A.—If I mistake not, Mr. A. J. Halleck was present. 

Q. 24.—How long were you occupied in examining these 
maps and the topography of the country ? 

A.—Two days; I was only a few minutes examining the 
maps. 

Q. 25.—What route did } t ou take in making this examination 
of the country ? 


97 


A.—The first day we went from the Hacienda down to the 
junction of the two creeks; the second day, we went from the 
Hacienda up to the Mine, from thence over to the ridge spoken 
of, and beyond, a portion of the distance up the main mountain, 
thence down into the canon of the creek which passes the Gua¬ 
dalupe Mines, following it around to the junction of the creek 
spoken of before. 

Q. 26.—On what days in the month of June, 1858, did you 
make this examination? 

A.—On the 25th and 26th of June. 

Q. 27.—At whose request do you now attend as a witness? 

A.—I was to keep myself in readiness; Mr. A. C. Campbell 
was to notify me when to come down. I came down upon 
notice from him, and have since attended at the request of Mr. 
A. C. Peachy. 

Q. 28.—Do you understand the Spanish language, and can 
you speak it ? 

A.—I do not speak it fluently, but can make myself under¬ 
stood upon general subjects in conversations; but well enough 
to attempt to interpret in all cases that might come before me 
in business. 

Q. 29.—Would you call that elevated land in which the Al- 
maden and Guadalupe Mines are situated, a range of hills, or a 
mountain ? 

A.—The manner in which the term is generally applied, I 
should call it a mountain, or a part of a range of mountains. 

Q. 30.—What then would you call the more elevated range 
lying to the southward of it ? 

A.'—A range of mountains. 

Q. 31.—You say that according to your understanding of 
the matter in which descriptions are given of mountains gener- 
allv, the range of hills in which those mines are situated is part 
of the Sierra ; please to state particularly your reasons for that 
assertion. 

A.—Because they are not isolated, or entirely disconnected 
from the main mountains by any streams or valleys; the ridge 
connecting them being perhaps only three or four hundred 
feet lower than the highest point of the peak of the mine, 
which I should think was between 1,500 or 2,000 feet high, 
and because they partake somewhat of the character of the 
main mountains, as much so at least as any other spurs run¬ 
ning out from the main mountains. 

Q. 32.—In what respects does it partake of the character of 

the main mountain? 

A.—In being rugged and cut up by ravines, and in being 
7 


98 


covered in places by wild oats and some timber the same as 
tlie lower portions of the other mountains and spurs. 

Q. 33.—Is that the character of the whole of that range from 
the Arroyo Seco to the Arroyo de los Alamitos. Do yon mean 
to say that it is all rugged ? 

A.—There are portions of it not so rugged as others, and in 
this respect it resembles other spurs or parts of the main moun¬ 
tains next to the valleys. 

Q. 34.—Do you mean to be understood that the similarity of 
appearance is one reason why you say that this range is a part 
of the main sierra ? 

A.—Yes sir. 

Q.A5.—Is not this range of hills completely separated and 
cut off along its whole length from the main sierra by two 
streams, the Arroyo Seco and the Arroyo de los Alamitos, and 
by the valleys in which those streams flow, with the excej:>tion 
of the narrow space occupied by the connecting ridge ? 

A.—It is, but the term ravine or canons are more proper to 
be applied to these two creeks than vallej^s. 

Q. 36.—What is the difference between a valley and a ra¬ 
vine ? 

A.—I understand a valley to mean generally a compara¬ 
tively level tract of land lying between ranges of hills or moun¬ 
tains, having much greater width than the term ravine implies. 

Q. 37.—What do you mean when you say in your answer, 
in question 6 of the direct-examination, “ according to my un¬ 
derstanding of the manner in which description is given of 
mountains generally ” ? 

A.—I mean and should have said, from my understanding 
of the term mountain as generally applied. 

Examination adjourned until Tuesday, at 12 o’clock. 


San Francisco, July 6, 1858. 

Examination resumed from Saturday, July 3d, 1858. 

Present : P. Della Torre, Esq., District Attorney; A. P. 
Crittenden Esq., and Edmund Randolph, Esq., for claimants. 

Q. 38.—What lies to the northward of the range of hills 
which you speak of in your answer 4 of the direct examina¬ 
tion, “as a range of hills running along the northeast side of 
said valley ” ? 

A.—Generally speaking, the valley of Santa Clara. 

Q. 39.—Crossing the valley of Santa Clara, going northward, 
you come to another range of mountains, do you not ? 



99 


Y—Yes sir, the mountains called the Coast Eange. 

Q. 40. Have those Coast Range of mountains the same gen¬ 
eral appearance and characteristic as the Sierra of which you 
have been speaking? 

Y -I think they are not so rough, and are not so much cov¬ 
ered with chapparel. 

Q- dl. Are they as rough and as much covered with chap¬ 
parel as the range of hills in which the mines are situated? 

A. Perhaps there is not much material difference. 

Q- d2. Look at the diseno referred to in your answer to 
question 9 o± the direct examination, and state what you mean 
in your answer to that question when you say, that the two 
creeks u are delineated as though a continuation of their lines 
would partially embrace that portion of the Sierra in which 
the mines are situated ” ? 

A.—Because it appears that if these lines were extended, the 
mountains would be between the creeks, which mountains, 
from their location, appear to be the ones in which the mines 
are situated. 

Examination adjourned until to-morrow, Wednesday, July 
7th, 1858, at 10 o’clock, A. M. 

(Signed.) J. EDGAR GRYMES, 

Special Commissioner. 


San Fkancisco, July 7th, 1858. 

Examination resumed from yesterday. 

Present: P. Della Torre, Esq., United States District Attor¬ 
ney, and A. C. Peachy, Esq., for the United States; and A. P. 
Crittenden, Esq. and Edmund Randolph, Esq., for claimants. 

Q. 48. —Do you mean to say that if the lines representing 
those creeks were prolonged in the direction which they have 
on the diseno, thev would bend around towards each other so 
as to include the range marked Sierra del Encino in anything 
like the same manner in which those creeks include the range 
in which the quicksilver mines are situated ? 

A.—1 mean that upon the diseno the creeks appear to be 
issuing from the mountains at points much more distant from 
each other than their respective sources are in the main moun¬ 
tains. These two creeks have their source in the mountains 
quite near each other, separated only by the ridge or water¬ 
shed before mentioned; and in their course to the northward 
they diverge, running nearly in opposite directions until at the 




100 


points where they issue from the mountains when they tend 
toward each other and meet at nearly as shown in the diseno. 

Q. 44.—Question 43 is repeated, and in explanation of it the 
witness’ attention is called to question and answer 42. 

A.—Allowing that the mountains marked upon the diseno 
are intended to represent the main range of mountains, leaving 
out those in which the mines are situated, the two creeks would 
necessarily, in order to have approximated to a true map of 
the country, been drawn with their sources much nearer to¬ 
gether than they are, and running in opposite directions along 
the northern base of said mountains, whereas in the diseno 
they appear to be issuing from the mountains at points distant 
from each other as I have before stated, and in a manner ap¬ 
proximating to their course upon the ground. 

[Answer objected to by claimants’ attorney as not responsive 
to the question.] 

Q. 45.—You mean only to say, do you not, that such would 
be the case if this rough sketch were an accurate representa¬ 
tion of the country, and if it represented the whole course of 
those streams near their heads ? 

A.—I do not think, from the general feature of the diseno, 
that it was drawn so carelessly or roughly as to warrant the 
supposition that so important a part of it was neglected as the 
position of the source of those two streams. 

[Answer objected to as not responsive to the question.] 

Q. 46.—I did not ask your opinion as to the degree of care¬ 
lessness with which the diseno may have been drawn, but only 
whether }^our answer to question 44 was not founded altogether 
on the supposition that that diseno was correct and represented 
the course -of those streams near their heads. 

Question 45 repeated. 

A.—My answer to that question was founded upon the sup¬ 
position that the lines of the diseno are generally correct as far 
as produced. 

Q. 47.—When in your answer to question 9 you say that 
that range of mountains or hills, in which the New Almaden, 
Guadalupe and San Antonio mines are, is the southern boun¬ 
dary of the rancho, according to the diseno, you speak, do vou 
not, only in reference to the diseno ? 

A.—Yes; under the belief that the mountains shown upon 
the diseno are intended to represent those in which the mines 
are situated. 

Q. 48.—In that answer you give, do you not, three reasons 
for that opinion. 1st. That a continuation of the lines of the 
two creeks would partially embrace that portion of the sierra 
in which the mines are situated. 2d. That the Sierra del En- 


101 


cino is represented as lying southwardly from the junction of 
the two creeks, called Capitancillos and Arroyo Seco; and 3d. 
From the position of the hills, called Lomas Bajas. Am I 
correct in stating your reasons ? 

A.—Yes. 

Q. 49.—Have you any other reasons in addition to those 
above stated ? 

A.—I might mention the point called “ Portesuelo,” and 
the line of the lands of Santa Clara, such as I infer are meant 
by the words on the diseho, the line of the Kancho of Ber- 
reyesa; the mountains also appear to be shown somewhat as 
they would appear when viewed from the Arroyo de los Capi¬ 
tancillos. It is also my opinion, that mountains so high as 
those of the mines would not have been omitted, and it is 
natural to suppose that the first mountains occurring south of 
the valley or Canada would have been shown on the diseno. 

Q. 50.—Have you now stated all your reasons? 

A.—Other reasons might occur to me, upon reflection, but I 
do not think of any others at this moment. 

Q. 51.—The reasons you have given already, are the only 
ones, are they not, upon which you have founded the opinion 
you have expressed, that the range marked Sierra del Encino 
on the diseho represents the range in which the mines are 
situated ? 

A.—They are ; though, as I said before, others might occur 
to me. 

Q. 52.—Have any others occurred to you ? 

A.—Not that I remember at this moment. 

Q. 53.—What is the meaning of the word “lindero” ? 

A.—I think it means boundary, but I have never consulted 
the dictionary. 

Q. 54.—If the two creeks were prolonged in the directions 
which they have, as delineated on the diseho, would they ap¬ 
proach or diverge from each other? 

A.—They would diverge. 

Q. 55.—You have assigned as one reason for your opinion, 
that the range marked Sierra del Encino on the diseho is rep¬ 
resented as lying southwardly from the junction of the creeks 
called Capitancillos and Arroyo Seco, how does that fact sup¬ 
port your opinion that the Sierra del Encino is intended to 
represent the range in which the mines are situated, rather 
than the main sierra to the southward of it? 

A.—Because they appear to lie between the two creeks as 
in nature. Were they intended to represent the main sierra 
alone, they would have been shown as lying partially outside 
of, and to the southward of, their sources. 


102 . 


[Answer objected to, as not responsive to the question.] 

Q. 56.—How does the fact, that the range marked Sierra del 
Encino, as lying southwardly from the junction of the two 
streams, tend to prove that that range means the one in which 
the mines are situated, rather than the main sierra, since both 
the sierra and the range, including the mines, lie to the south¬ 
ward of the j unction of the creeks ? 

A.— Because they are the first mountains that occur to the 
southward of the junction of the creeks upon the southern side 
of the valley or Canada. 

Q. 57.—Another of your reasons is, the position of the hills 
called Lomas Bajas; how is that a reason why the range 
marked Sierra del Encino should be intended for the mine 
ridge, rather than the main sierra, as both the latter occupy 
the same relative position with the Lomas Bajas? 

A.—Because, as one of the details of the map or diseno, 
they assist in identifying different points in the topography. 
They are not so high as the mountains of the mines, and there 
is no reason clear to one why they should be shown upon the 
diseno, and those of the mines omitted. 

[Objected to, as not responsive to the question.] 

Q. 58.—You have stated the position of the hills called 
Lomas Bajas as one of the grounds of your opinion that the 
range marked Sierra del Encino is intended to represent the 
mine ridge; how do the positions of these hills tend to prove 
that ? 

A.—From the fact that they are represented as running 
parallel with the Arroyo de los Capitancillos, and with the 
general direction of the valley or Canada and mountains in 
which the mines are situated, and that they lie to the north¬ 
ward of the objects named nearly in the manner in which they 
exist in nature. 

Q. 59.—Where are the Lomas Bajas represented on that dis- 
seno as parallel with the mountains in which the mines are 
situated ? 

A.—They are the mountains marked Lomas Bajas. In 
speaking of the mountains in which the mines are situated, in 
answer to previous question, I had reference to the mountains 
marked Sierra del Encino. 

Q. 60.—From the fact that the Lomas Bajas are represented 
as being parallel with the Arroyo de los Capitancillos, and 
with the general direction of the valley, and with the range 
marked Sierra del Encino, how does it follow that that range 
was intended to represent the mine ridge rather than the sierra, 
the two latter being themselves parallel ? 

A.—Because the mountains in which the mines are situated 


are the first which occur to the southward of the Lomas 
Bajas. 

Q. 61.—In your answer to the question 57, you say that the 
Lomas Bajas are not so high as the mountains of the mine. 
Are they as high as the main sierra ? 

A.—No, sir. 

Q. 62.—You have mentioned, as one of the grounds of your 
opinion, that the Sierra del Encino is intended for the mine 
ridge, the fact that the Portosuelo is designated on the diseno. 
How does that fact tend to prove it ? 

.A.—From its being represented to the northward of the 
Sierra del Encino, and from there being no other range of 
mountains shown between those points. 

Q. 63.—You have also stated amongst the ground of your 
opinion, the designation on the diseno of the line of the lands 
of Santa Clara. How does that tend to show that the range 
marked Sierra del Encino was intended to represent the mine 
ridge, and not the main sierra ? 

A.—Because they are the first to occur to the southward of 
said lands. 

Q. 64.—Please answer in regard the last question in refer¬ 
ence to the line of the Bancho of Berreyesa to which you have 
referred. 

A.—From the direction which the Sierra del Encino has 
from the line of Berreyesa referred to. 

Q. 65.—Has not the main sierra the same direction from the 
line of Berreyesa as the main ridge has? 

A.—It has. 

Q. 66.—You have stated that the mountains (referring to the 
Sierra del Encino) delineated on the diseno, also appear to be 
shown somewhat as they would appear when viewed from the 
Arroyo de los Capitancillos. Do you mean that you could 
pretend to identify the range intended by the Sierra del Encino 
by the manner in which the outline is drawn ? 

A.—d do not. I had reference only to its direction, and to 
there being represented a long line of mountains between the 
points where the two creeks issue from the range. 

Q. 67.—What has the direction to do with the question, when 
the direction both of the main sierra and the mine ridge have 
the same direction ? 

A.—Were the mountains in which the mines are situated 
omitted in the view, the points at which the two creeks issue 
would be shown as nearer together. 

[Answer objected to, as not responsive to the question.] 

Q. 68.—Last question repeated, and witness’ attention called 
to question and answer 66. 


104 


A.—I had reference to the fact that the ridge in which the 
mines are situated is the nearest to the creek, and is the first 
object presented to the view in looking in a southerly direction 
from the creek; although from that point the mountains appear 
to be a more continuous range than when examined from a 
nearer point. The canons in which the two creeks have their 
source are not easily distinguished. 

[Answer objected to, as not responsive to the question.] 

Q. 69.—In your answer to question 66, why do you refer to 
the direction of the range marked Sierra del Encino? 

A.—Because, from the length of the ran are shown between 
the points where the creeks issue therefrom, it approximated 
nearer to a correct view of the range as it is, than as though 
the ridge where the mines are situated were wholly omitted. 

Q. 70.—Do you observe that there are any other important 
objects besides the mine ridge, which are on that tract of land, 
and which are not delineated on that diseno ? If so, what ob¬ 
jects? 

A.—There are no objects omitted which are of so important 
a character in the topography as the ridge in which the mines 
are situated. There are a few small hills lying in the valley, 
which are not shown upon the diseno. There is also a creek 
or branch which flows from the eastward into the Arroyo de 
los Capitancillos, which is not shown upon the diseno. 

Q. 71.—What do you mean by the word “topography”? 

A.—I mean a delineation of the natural objects which diver¬ 
sify the face of the county. 

Q. 72.—Do you know, as a matter of fact, where the range 
or part of the range is, which bears the name of Sierra del 
Encino ? 

A.—I have heard the term applied to a spur of the moun¬ 
tains in which the mine of New Almaden is situated, distant 
from the spur in which the mines are situated, and also to the 
spur itself in which the mines are situated; and also, I think I 
have heard the term applied to the mountains in that vicinity 
generally; but it is not familiar to me, nor have I been accus¬ 
tomed to use the term in connection with those mountains. 

Q. 73.—Who did you ever hear apply that name to what you 
call the spur in which the Almaden Mine is situated, and when, 
and where? 

A.—I do not recollect that I have ever heard the term used 
at all, except with reference to the dissention which has been 
had as to which of the spurs the name properly belongs to. 
Some two months ago, perhaps longer, I had occasion to make 
a survey in that vicinity, with Mr. Avy, of San Jose. In con¬ 
versation with him in regard to the settlement of the bounda- 


105 


ries of the Justo Larios Rancho, he pointed out to me what he 
thought to be the Sierra del Encino, which was not the one in 
which the mines are situated, and also stated that other parties 
claimed that the name properly belonged to the last named 
ridge. I cannot now state who I have heard say positively 
that the name belonged to the ridge in which the mines are 
situated, as I never paid particular attention to the matter. 

[U. S. District Attorney objects to the whole of the foregoing 
answer.] 

[The counsel for claimant objects to all, except the last sen¬ 
tence.] 

Q. 74.—Can you not recollect when you first heard it so 
called ? 

A.—I cannot say positively, but I think that name was ap¬ 
plied to the ridge in which the mines are situated, by Mr. 
Young, upon the occasion referred to, at the commencement of 
my examination. I had never paid so particular attention to 
the names, especially the Spanish terms, applied to natural 
objects, as to their position and characteristic? 

Q. 75.—Did you, at that or any other time, have any conver¬ 
sation with Mr. Young in regard to what was intended by the 
range designated Sierra del Encino on the diseno? 

A.—He gave it as his opinion, at the time referred to, that 
the mountains shown upon the diseno were the ones in which 
the mines are situated. But little use, however, was made of 
the term Sierra del Encino. He seemed to attach more impor¬ 
tance to the position of the mountain than to its name. 

[Answer objected to as not responsive to the question, no 
question having been asked as to the terms of the conversation 
nor the views of Mr. Young.] 

Q. 76.—Is this Mr. Young the present Superintendent of the 
New Almaden mine? 

A.—I believe he is. 

Direct, Resumed. 

Q. 1.—Is not the diseno in this case easily comprehensible as 
a sketch of the country, if you regard the Sierra del Encino 
there delineated as being the range of mountains in which the 
new Almaden and Guadalupe mines are situated? 

A.—I think it is. 

Q. 2.—You are asked upon the cross-examination, Question 
27, at whose request do you now attend as a witness ? Please 
read the question and answer, and state if you had any com¬ 
munication from any officer of the Government in relation to 
your attendance. 

A.—I had. I was introduced by Mr. Peachy to Col. P. 


106 


Della Torre, the U. S. District Attorney, who stated to me in 
what points he wished to examine me, and told me at what 
hour to appear before the Commissioner. Previous to leaving 
his office, the maps were exhibited to me, which have since been 
referred to during my examination, for the purpose of ascer¬ 
taining the extent of my acquaintance with the subject. 

CHAS. T. HEADY. 


Sworn to, and subscribed before me, this 7th day of July, 
A. D., 1858. 

J. EDGAR GRYMES, 

Special Commissioner. 


Indorsed. Filed, July 7, 1858. 

W. H. Chevers, Clerk. 

I, W. H. Chevers, Clerk of the District Court of the L T nited 
States for the Northern District of California, do hereby certify 
the writings annexed to this certificate to be full, true, and cor¬ 
rect copies of their respective originals now on file and remain¬ 
ing of record in my office. 

In testimony whereof I have hereunto set my hand 
and affixed the seal of said Court, this 11th day 
of August, A. D., 1858. 

W. H. Chevers, Clerk. 



United States District Court, ) 
Northern District of California. ) 

The United States 
vs. 

Charles Fossatt. 

San Francisco, August 4th, 1858. 

On this day, before the District Court of the United States 
for the Northern District of California, duly authorized to ad¬ 
minister oaths, etc., etc., came R. C. Matthewson, a witness 
produced on behalf of the United States, in case No. 132, being 
an appeal from the Board of Commissioners, to ascertain and 
settle the private land claims in the State of California, in case 
No. 340, on the docket of the said Board of Commissioners, 
and was duly sworn, and testified as follows: 



107 


Present: The District Attorney and Mr. Peachy, for the 
United States. Mr. Randolph, for Claimant. 

Question by District Attorney. 

My name is R. C. Matthewson. I reside in San Francisco; 
for the last four years have been engaged in United States 
public surveys; 1 was on the land claimed in this case last 
week ; went there at Mr. Peachy’s request; I have, since that, 
conversed with the District Attorney; I examined certain 
maps and documents; I traveled around the country consider¬ 
ably during my visit to the land. (Map marked “A. P. C.” 
shown to witness—Lewis’ map.) 

The mountains delineated on this map, and marked from X. 
to Y., are a part of a spur making out to the north from the 
main range of mountains. It is cut by the Arroyo Seco, on 
one side, and the Arroyo de los Alamitos on the other, run¬ 
ning in opposite directions, winding round the point of the spur 
until they join in the valley below. (Traced copy of the diseho 
shown witness.) 

Q.—State if the Sierra del Encino, on this diseno, is capable 
of being located by means of the other natural objects de¬ 
lineated thereon; and if it can be, state what are the other 
natural objects which determined its location, and what is the 
position of said sierra on the map shown you, marked “A. P. 
C.” 

A.—I think it can be so located. Its location is determined 
by the Arroyo Seco to the west, and the Alamitos to the east. 
These are the principal objects. Inferences might be drawn 
from the position of the house, etc. The position of the moun¬ 
tain, marked X. Y. on the map, corresponds to the Sierra del 
Encino on the diseno. 

Q.—Have you made a sketch of that country, making an 
addition to the diseno of the country to the south of the land 
represented on the diseno—if so, produce it. 

[Objected to, on the ground that it is too late to amend, or 
add to the diseho of Justo Larios.] 

A.—I have, (witness produces the sketch marked R. C. M., 
and attached to deposition.) That part in black is a traced 
copy of the diseho; that part in red represents the portion of 
the mountains to the south. 

Q.—If you were called on to locate the land, by the diseno 
of Justo Larios, where would you fix the southern boundary? 

A.—It is, evidently, at the foot of the first hills you come to 
on leaving the valley. Irrespective of quantity, I would draw 
a straight line from the point where the Arroyo Seco terminates 
on the map, that is where it leaves the mountains, to where the 


108 


Arroyo cle los Alamitos terminates, at the foot of the mountains. 
I would locate it in this way from the diseno alone. There 
may be conditions in the grant which would control the survey. 
This line would embrace a portion of the foot-hills. It would 
nearly coincide with the line “I. J. K.,” on Lewis’ map. I 
think a straight line as described, would be sometimes to the 
north and sometimes to the south of that line. It would run 
on the northern slope, near the base of the mountain, on which 
the mine is situated. It might be entirely at the base. 

Q.—In what mode did you make the reconnoissance of the 
country ? 

A.—I went from the hotel to the mine, thence to the Porte 
suelo, between the head waters of the Arroyo Seco; I then 
followed the Arroyo Seco down until it takes a turn and leaves 
the mountains, and thence to its junction with the Arroj^o de 
los Capitancillos. I then followed the Capitancillos to where 
the other Arroyo Seco, and the Alamitos join, and up the Ala¬ 
mitos to the hotel. 


Cross-Examined. 

I speak very little Spanish. I never examined this country 
before my visit there last week. I was there two or three days. 
I staid at the house of Mr. Young, the Superintendent of the 
mine. It is the Company’s house. It is not kept as a hotel. I 
did not pay any bill. I have not received anything yet for 
making this examination. I don’t know what 1 may receive. 
I generally charge for work of this kind, when I take instru¬ 
ments, $20 a day and expenses, but in a case of this kind, I 
don’t know whether I ought to charge so much; that would be 
my medium charge. 

Q.—How much do you intend to charge for the job, expenses 
included ? 

A.—Not over $89. 

Q.—To whom do you look for pay ? 

A.—To Mr. Peachy. 

Q.—Is it permitted to Deputy Surveyors of the United States 
to render services, like these, at the instance of third parties, 
for pay, to the prejudice of claimants against the United States? 

A.—I don’t know of any rule governing Deputy Surveyors 
in a case like this. If any person were to offer to employ me 
to do any work, not acting, officially, as Deputy Surveyor, I 
would conceive myself at liberty to take the money and do the 
work. 

Q.—Did you not know that the object of your employment 
was so to locate the boundaries of the Justo Darios Pancho, as 
to exclude the New Almaden Mine, by whose attorney you 
were employed? 


109 


A.—No; I supposed the object was to ascertain my opinion 
as to where it ought to be located. 

Q*—Did you not know that the object was to obtain from 
you, such an opinion as would exclude that mine from the 
grant ? 

A.—No; I was requested to go there and examine, and see 
where I would locate the grant by that diseno. 

Q*—Did you not know that your employer wished and ex¬ 
pected such an opinion? 

A.—He said nothing to me, except to go there and see what 
was the proper location of the grant. 

Q-—Hid you ask of natives, or old inhabitants, of the country, 
which mountain bore the name of Sierra del Encino ? 

A.—I did not; I neither asked a native or any other person 
anything about it. 

Q.—Did you inquire of any one, by what name the ridge, 
marked “X. Y.,” on Lewis’ Map, was known at the date of the 
grant ? 

A.—I did not. 

Q.—Did you ever read the grant in this case ? 

A.—No; I believe I heard it read. 

Q.—When, and where? 

A.—After my return I heard Mr. Peachy reading it. 

Q.—State more fully how you are enabled to locate the 
Sierra del Encino, by the two arroyos referred to ? 

A.—After leaving the Capitancillos, going towards the south, 
the first sierra you come to on the diseno is that called the 
Sierra del Encino, and the diseno shows that both the Arroyo 
Seco, and the Arroyo de los Alamitos head to the south of the 
sierra marked Sierra del Encino. That ridge, therefore, cor¬ 
responds with the ridge marked “X. Y.,” on the map of Lewis. 

Q.—If what you call the main sierra is intended by the 
Sierra del Encino on this diseno, and if the main sierra is the 
southern boundary of the rancho, would there be any object 
in delineating the course of the two creeks, running parallel 
with the base of the mountain ? 

A.—I don’t consider that there is a main sierra separate from 
any other portion of the sierra; it is merely a spur, and con¬ 
nected by a ridge with the main sierra. You can travel from 
the valley right up to the highest point of the ridge. I think 
there would be an object in delineating the creeks as supposed ; 
it would show that the portion of the sierra delineated was not 
that next to the valley, but that to the south of the creeks. 

Q. —Are there any objects delineated on this diseno, except 
those intended to represent the external boundaries ? 

A.—Yes; there is a house. The Arroyo de los Capitan- 


110 


cillos does not represent tlie boundary, for the u lindero of Ber- 
revesa” is beyond it, neither does the Arroyo Seco, according 
to the diseho, appear to be a boundary. The object of all these 
representations was to show the position, and fix the location 
from all, taken together. 

Q.—Are there not several small streams rising in the ridge 
11 X. Y.,” and flowing thence towards the plain, in the direction 
of the Arroyo de los Capitancillos? 

A.—I don’t think there is any well defined stream; there 
are gulches, no doubt, which in winter, have water in them, 
but I saw no stream, or well defined bed of any, in the valley. 
I see, on Lewis’ map, several small streams coming down 
from the ridge “X. Y.,” and losing themselves in the plain. 

Q.—Are any of those small streams delineated on the diseho? 

A.—Xo, there are not. 

Q,—If the ridge X.Y. was intended by the Sierra del Encino 
on the diseno, would there not have been the same reason for 
delineating those small streams on the diseho as that given by 
you for delineating the course of the two arroyos at the foot of 
the main ridge, viz: to show that the southern boundary was 
the ridge next beyond those small streams ? 

A.—I don’t think so. Those small creeks are of very small 
importance; but this is not the case with large arroyos. 

Q.—Would not several small streams answer as well for the 
certain location of the ridge next beyond them, as the two lar¬ 
ger streams would answer to designate the ridge beyond them? 

A.—No; for the larger streams should alwaj^s be selected. 

Q.—Is there not a range of hills on the western side nearly 
parallel with the Arroyo Seco. Is there not also on the eastern 
side, an isolated hill referred to in the grant? and is either de¬ 
lineated on the diseno? 

A.—There is such a range and such a hill, but neither is on 
the diseno. 

Q.—If the main ridge of the sierra was intended by the 
Sierra del Encino on this diseho, would there have been any 
more reason for delineating the mine ridge X. Y. than for des¬ 
ignating the western range and isolated hill ? 

A.—I think so, because prominent objects should be selected 
in preference to minor ones. It would be better, certainly, if 
all the objects were delineated. 

Q.—Is there any object except the house delineated on the 
diseho between the Arroyo Capitancillos and the Sierra del 
Encino, marked as the southern boundary, whichever ridge 
that may be? 

A.—Between the Arroyo de los Capitancillos and the Sierra 
del Encino, there is no object but the house marked on the 
diseno. 


Ill 


Q.—Is it not perfectly manifest, upon the inspection of the 
diseho, that it was very rudely drawn, aud not intended to give 
the topography of that rancho, and that on the south nothing 
was intended except the southern boundary itself, without ref¬ 
erence to hills in the valley, streams flowing at its foot, or run¬ 
ning down its sides, to the plain. Is it not merely and simply 
an outline on that side ? 

A.—The diseno is very imperfect in respect to topography. 
The diseno is very roughly drawn. I think it was not intend¬ 
ed to give the general topography of the ranch, but to give the 
prominent points by which the grant could be located. There 
is nothing laid down as the southern boundary except the 
mountains called Sierra del Encino, and the termination of the 
Arroyo Alamitos, and Arroyo Seco, at the base of the Sierra 
del Encino. I think it is an outline of the points which were 
intended to determine the locality of the grant. 

Q.—From a diseho such as this, so rudely drawn, totally omit¬ 
ting the topography of the country, and with simply the out¬ 
line of a mountain as the southern boundary, is it not in the 
last degree preposterous to undertake the location of a rancho, 
and that without knowledge of the calls of the grant, and 
without putting yourself to the trouble to take information 
from competent persons in the neighborhood as to what were 
the objects intended by this rude sketch, and the words written 
upon it? 

A.—I did not go there to locate the grant at all; I merely 
went to see how I would locate it by the diseho alone, inde¬ 
pendently of all other papers. 

Q.—AYhy, then, knowing as you must have known that you 
would be called as a witness on a question so important as the 
boundaries of this rancho, did you not decline venturing to 
give an opinion founded on this diseno alone ? 

A.—I was requested to see how I would locate the land 
by the diseho alone. If it cannot be located by the diseno 
alone, the testimony won’t amount to anything. I considered 
I had a right to give my opinion as requested. 

Q.—As you attach so much importance to the points where 
the two arroyos delineated on the diseho appear to head in the 
mountains, how could you in protracting those streams lay 
down their course, as you have done in your sketch, directly 
over the hills ? 

A.—I drew this sketch to show the country as it is in reality, 
and to indicate the course of the streams in the country lying 
south of that I supposed to be included in the diseho. 

Q.—Is it not plain that the delineation of those streams can¬ 
not be taken fairly to represent the face of the country, when 


112 

in extending them yon are obliged to make them run over the 
hill ? 

A.—The hills are delineated in elevation, and the streams 
do not run over the hills. The hills conceal the opening 
through which the streams pass. 

Q.—When you are on the ground, and look up the Arroyo 
Seco, do you not see the main ridge of the sierra just about 
the place w r here the Arroyo Seco is represented as heading, 
and is there not a plain view of that part of the main ridge of 
the sierra where you say the hills in elevation conceal the 
opening through which the stream passes ? 

A.—I can see the main ridge, but far beyond the place 
where the arroyo is represented on the diseno as heading. 

Q.—When you were upon the ground, did you have with 
you the diseno of Bcrreyesa ? 

A.—I did. 

Q.—Look at this traced copy of that diseno, and say how 
you would run the western boundary of the rancho of Ber- 
reyesa, represented by the dotted line; where would you be¬ 
gin, by what hill would you pass, over what ridge would you 
cross ? what stream would you then pass, and at what ridge 
would you terminate that line ? 

A.—I would commence at the junction of the Alamitos and 
Seco, pass by the eastern base of the hill called “Lomita,” 
cross the Lomas Bajas, then the Arroyo Alamitos to a point 
near the base of the Sierra Azul. 

Q.-—If that western line of Berreyesa was also the eastern 
boundary of Justo Larios’, would you not terminate the latter 
at the same point in the Sierra Azul, having first crossed the 
Arroyo and Alamitos ? 

A.—I would without any other conditions. I could not 
locate a grant by one line. 

Q.—If the eastern boundary of Justo Larios’ commences at a 
certain point, and is continued southwardly until it reaches 
a certain point, would not the place of its termination be a 
point on the southern boundary of the rancho ? 

A.—It would, if the grant was consistent with itself in all 
its parts. 

Q.—Would it not, if the rancho was included between east¬ 
ern and southern, northern and western lines, which intersected 
respectively ? 

A.—Yes ; if the conditions were not inconsistent. 

Q.—What do you mean by inconsistent conditions ? 

A.—I understand lines that will not close by running round 
the rancho. 

Q.—Bo you know anything that will prevent the lines of 
Justo Larios’ rancho from closing? 


113 


A.—I know nothing about the rancho. I only know the 
ciiseno. 


Direct, Resumed. 

Q.—Would there be any difficulty in finding the places 
where the arroyos laid down on the diseno debouch from the 
mountains; or in finding the northern base of the mountains 
marked X. Y. on the map “A. P. C.” ? 

A.—There would not within narrow limits. There might 
be a difference of opinion as to the exact location, but as a 
general thing there would be no difficulty. 

Q.—Standing on the ground, and looking up at the place 
where the Captancillos, on the diseno of Justo Larios, de¬ 
bouches from the mountain, is, or is not, the view of the moun¬ 
tain beyond the mine cut off? 

A.—I don’t know what the appearance is. I presume a 
portion of it is concealed; but I did not look particularly from 
that point. 

Q.—Is there anything on the diseno of Larios to indicate 
that the southern line would traverse the mountain more than 
one thousand feet higher than the points where the Arroyo 
Seco and Capitancillos debouch from the mountains ? 

A.—There is no indication of a peak higher than the others 
on this diseno; the range runs along pretty regularly. 

R. C. MATTHEWSON. 

Taken and subscribed in open Court, this 4th August, 1858. 

OGDEN HOFFMAN, 

District Judge. 


(Indorsed.) Filed August 4th, 1858. 

W. H. Chevers, Clerk. 

I, W. H. Chevers, Clerk of the District Court of the 
United States for the Northern District of California, do 
hereby certify the foregoing to be a full, true, and correct copy 
of the original, now on file, and remaining of record in my 
office, with the exception of the exhibit thereto attached, 
marked “R. C. M.” 

In testimony whereof, I have hereunto set my hand, and 
affixed the seal of said Court, this 11th day of August, A. D., 
1858. 

[l. s.] W. H. Chevers, Clerk. 

8 


114 


United States District Court, ) 
Northern District of California, j 

The United States 
vs. 

Charles Fossatt. 

San Francisco, July 12, 1858. 

On this day, before Cutler McAllister a Commissioner of the 
United States for the District of Caifornia, duly authorized to 
administer oaths, etc. etc., came Leander Ransom, Esq. a wit¬ 
ness produced on behalf of the United States, in case No. 182, 
being an appeal from the Board of Commissioners to ascertain 
and settle the private Land Claims in the State of California, 
in case No. 866 on the docket of the said Board of Commis¬ 
sioners, and was duly sworn and testified as follows: 

Present: U. S. District Attorney and A. C. Peachy, Esq. 
for the Government, and Edmund Randolph, Esq: 

Question by United States District Attorney. 

Question 1.—What is your name, age and place of residence ? 

Answer. —My name is Leander Ransom; fifty years old, and 
I reside in San Francisco, California. 

Q. 2.—What is your profession, and what public office have 
you held in California ? 

A.—I am a Civil Engineer; I have been chief Clerk for 
seven years in the U. S. Surveyor General’s office. 

Q. 8.—Are you acquainted with the land claimed in this case 
and the adjacent country? if yea, state the extent of your 
knowledge, and how and when it was obtained ? 

A.—My first knowledge of the country is that I visited the 
New Almaden Mines in 1852, and about two weeks since, I 
visited that country, and passed around and over the land 
claimed in this case, in various directions. 

Q. 4.—Look at the map of the survey in this case marked 
“ A. P. C.” (Lewis’ survey,) and state how you regard the moun¬ 
tains thereon delineated as extending from u X”to“Y”in 
reference to the general range lying to the south of the Canada 
de los Capitancillos. 

[ Objected to by claimant’s counsel because it asks the opinion 
of the witness, which is not evidence in this case.] 

A.—I consider a portion of the general range of mountains 
lying to the south of the Canada. 

Q. 5.—State if the Sierra del Encino on the diseno of Justo 
Larios is capable of being located by means of the other natural 


115 


objects delineated thereon, and if, in yonr opinion, it can be; 
state what are the other natural objects which determine its lo¬ 
cality, and what is the position of said sierra on the map of 
Lewis’ survey marked “A. P. C.” 

A.—From the position of the streams as marked on the dis- 
eno, I should have no difficulty in designating the mountains 
marked on the diseno Sierra del Encino. From the position 
of the streams, I should think that part of the country marked 
“X. Y.” is the same as the Sierra del Encino. 

Q. 6.—Describe, minutely, the examination you made of this 
land when you were last on it. 

A. •—I entered upon the land at the forks of the creek mark¬ 
ed on the diseno as the Arroyo Seco and Arroyo de los Cap- 
itancillos, passed along the road towards the Almaden mines, 
thence up the creek to the Hacienda, thence to the mines of 
Almaden, thence to the head waters of those streams marked 
on the diseno. From the mines I passed to that portion of the 
mountains where the said streams flow in opposite directions. 
I had no means of ascertaining the elevation ; I had this map, 
or a copy of Lewis’ map, before me; to the best of my judg¬ 
ment the elevations as marked on the map were approximately 
correct. From that place we followed down the depression to 
the Arroyo Seco, and following down the Arroyo Seco to the 
place I first entered on the tract. 

Q. 7.—Regarding the Sierra del Encino as being the same as 
the mountains extending from “X” to “Y,” state whether 
this diseno of Larios’ is a correct representation of the country 
it pretends to delineate ? 

A.'—I do not consider it a perfect delineation, because none 
of those maps made without a survey, are correct. I consider 
it a very fair delineation of the country, as far as it goes. Not 
one map in twenty in the old archives gives as good an idea of 
the country as this does. 

I regard the map from the forks of the two streams, Arroyo 
Seco and Arroyo de los Capitancillos for several miles up each 
creek, as a very fair representation of the country. 

Q. 8.—Following up the Arroyo Seco and the Arroyo de 
los Alamitos from the points where they cease to be delineated 
on the diseno, what direction do the streams take ? make the 
description with reference to the diseno. 

A.—The diseno shows better for itself, better than I can de¬ 
scribe it. 

If I am asked if the streams on the map were extended into 
the mountains, what would be the direction of them, I should 
say the head waters of each are very near to each other, and 
they pass in different directions, forming each one an elbow 
before they join the streams marked on the diseno. 


116 


From tlie point u O ” on Lewis’ map, down to a little below 
Station 100, there is a depression, but no water when I was 
there; the water appears to come from the branch marked on 
Lewis map as coming down from the direction of Mount Um- 
unhum, joining the said depression or slight ravine at Station 
101. 

Cross-Examination. 

Q. 1—'Are you at this time still chief Clerk in the Surveyor 
General’s office, and if not when did you cease to be? 

A.—I am not at this time ; I ceased about two months since. 

Q. 2.—What is your present occupation? 

A.—-General Land Agent. 

Q. 3—What is the nature of the business of your general 
land agency ? 

A.—Any legitimate business appertaining to land titles and 
land surveys. 

Q. 4.—Is the location of grants or ascertainment of boun¬ 
daries within the scope of your business of General Land 
Agent ? 

A.—It is. 

Q. 5.—In what manner do you make your information, skill, 
and experience useful in the location of grants, or ascertainment 
of boundaries ? 

A.—From the information I received as chief clerk, from my 
knowledge of titles, obtained from their examination in the old 
archives. 

Q. 6.—As the location of grants, and ascertainment of boun¬ 
daries is a subject of adjudication by the Courts and afterwards 
for corresponding surveys, by the Surveyor General, or his 
deputies, in what manner is it in your power to determine a 
location, or fix a boundary ? 

A.—I do not pretend, finally, to fix a boundary, but by ex¬ 
amination of documents and evidence, to determine in my own 
mind, what ought to be the boundary, when the matter comes 
before the Surveyor General, to give him my reasons for such 
an opinion. 

Q. 7.—Lid you render these services on the application of 
parties interested and for fees, and is it a means of your liveli¬ 
hood ? 

A.—I have rendered those services on application, and it is 
a means of my livelihood. 

Q. 8.—Then your general land agency is a profession some¬ 
thing like the law, in which you are paid as counsel on the one 
side or the other, in questions of locations and boundaries ? 

A.—As a general thing I expect to be paid, but not in every 
instance. 


117 

Q. 9.—How many visits in all have you ever made to this 
New Almaden Mine ? 

A.—Two. 

Q- 19.—At whose instance and request did you make the 
first visit in 1852 ? 

A.—I was not requested by any one; I went on a pleasure 
excursion for the purpose of seeing the mines. 

Q- 11-—Hid you go in the company of any of those now pos¬ 
sessing and claiming to own that mine, or of any of their ser¬ 
vants or employes ? 

A.—I do not recollect of any person being present; I do 
not recollect who owned it at the time. 

Q- 12.—At whose instance and request, and in whose com¬ 
pany did you visit the mines and examine the country adja¬ 
cent, about two weeks since ? 

A.'—I went at the request of Mr. Peachy who is now pres¬ 
ent, but not in his company. He intended to go but did not. 
On the boat I was introduced to Mr. Barron. He is the only 
one who is interested in the mines who went along with me. 

Q. 18.—Is this Mr. Barron one of those persons who are 
known as the New Almaden Company, or their agents? 

A.—He was introduced to me as one of the firm of Bolton, 
Barron & Co., and from his conversation I should think he was 
interested or was one of the agents. 

Q. 14.—Now answer at whose request, and in whose com¬ 
pany you examined the country adjacent to the mine ? 

A.—Mr. Barron was along, and two or three agents that 
they have, Mr. Young, Day and Capt. Naglee accompanied 
me from the hacienda; there was no request made to me after 
I left here ; It was generally understood I was to examine the 
country. 

Q. lo.—Did Barron and the agents accompany you to the 
divide where the two arroyos flow in opposite directions; did 
they produce Lewis’ map for your inspection, and call your at¬ 
tention to the elevations marked upon it, and to the natural ob¬ 
jects which serve to show the relation of the ridge “X. Y ” on 
Lewis’ map, to the main sierra. 

A.—Mr. Barron, Day and Young, accompanied me, with oth¬ 
ers, Capt. Naglee; and we had with us a copy of this map fur¬ 
nished by them, examined it on different points and had a gen¬ 
eral talk of the country around. We also had a copy of the 
diseno. 

Q. 16.—Did you discuss with those persons what were the 
objects intended to be delineated on the diseiio, for example, 
whether the ridge “X. Y.” on Lewis’ map, or the main sierra, 
was delineated on the diseno as a southern boundary of the 
rancho and thereon inscribed Sierra de Encino ? 


118 


A.—The object of the visit was to ascertain points and posi¬ 
tions of the country; we had a free conversation. I asked them 
about certain points, but did not give them my opinion. 

Q. 17.—Did you discuss with those persons the question 
whether the two arroyos delineated on the diseno were rep¬ 
resented as rising in the main sierra, or as passing by the ridge 
X. Y.? 

A.—We had a general conversation, but was not specific 
about this. 

Q. 8.—Was the manner of the delineation of those two 
streams cited in your conversation as evidence that the Sierra 
del Encino marked on the diseno, was intended for the ridge 
X. Y., on Lewis’ map ? 

A.—The diseno and the map were compared, and as to the 
directions of the streams; no opinon was asked of me as to the 
mountain. The conversation in general was as to points and 
different positions, so that I could understand the country. 

Q. 9.—Did you not understand the object of the examina¬ 
tion and conference to be the ascertainment of the location and 
boundaries of the Justo Larios grant in such manner as not to 
include the New Almaden Mine within the limits of that grant ? 

A.—I do not know what their object was, any further than 
this: they wanted me to examine certain points, so as to give 
my opinion as to the proper location of the grant; but I was 
aware that they desired the mines to be left out. 

Q. 16.—Have you any, even the slightest, doubt that the 
object of carrying you down to the Xew Almaden mine, taking 
you across and round the land claimed in this case, reconnoiter- 
ing the country and examining maps, was all with a view to 
your appearance here as a witness to testify as to the location 
and boundaries of the rancho of Justo Larios, to the end that 
they might be so determined as not to include the New Alma¬ 
den mine ? 

A.—I was not told direct that I would be called as a witness, 
but it was intimated that I might be so called to testify. 

Q. 11.—Were not all the points raised upon your direct ex¬ 
amination, as going to show that the grant in this case would 
not include the new Almaden mine spoken of, and considered 
in the conference between yourself, a proprietor and agent of 
the mine, and other persons, on the occasion that you have 
first testified ? In a word, has not your testimony this day cor¬ 
responded precisely with the opinion of the interested parties 
with whom you conferred upon the ground ? 

A.—I heard very few opinions about it; I formed my own 
opinions as to the different points and locations. 

Q. 12.—When the conspicuous objects of the surrounding 


119 


country were being pointed out to you, was your attention 
called especially to a certain live oak tree, or encino, standing 
alone and very prominent on a slope of the main sierra? 

A.—An oak tree, said to be the one, was pointed out to me, 
perhaps at my request, as the tree about which so much had 
been said. 

Q- 13.—Give some description of the appearance of that tree, 
what sort of an object does it make? 

A.—The tree pointed out to me was not a large tree, but 
appeared standing by itself, from the distance from which I 
viewed it; I did not see any peculiarity about it. 

Q. 14.—I understood you to say, then, that the tree in ques¬ 
tion was not one of the most notable and conspicuous objects 
which strike the eye upon a general survey of the slopes of the 
main sierra ? 

A.-—I do not say that I say it was not a large tree, but it 
was a tree standing by itself. There were other larger trees on 
the other sierras, but they were not alone by themselves. I 
must acknowledge that I was disappointed in its appearance. 

Q. 15.—How long did you remain at or in the neighborhood 
of the Hew Almaden mine ? where were you lodged ? at whose 
expense was that journey made? 

A.—I paid my own expenses as far as San Jose ; I rode from 
Alviso in company with Mr. Barron to the mines; we arrived 
there about sundown of the same day that we left there; we 
stopped at a large house which I was told belonged to the 
Almaden Company; I spent the next day from six in the 
morning to four in the afternoon in traveling over the country 
and examining the different objects; the next day I returned 
to this city in company with Mr. Barron, and, I presume, at 
his expense. 

Q. 16.—Hid you render all this service of visiting the mine, 
riding over the country, studying its appearance, noting con¬ 
spicuous natural objects, etc., entirely gratuitously ? 

A.—I had two objects in making the visit—one, to see the 
mines and the country, and to obtain a little recreation or out¬ 
door exercise, the other to accommodate a friend. I have 
not received anything for my services ; have not been prom¬ 
ised anything, and do not expect anything beyond my ex¬ 
penses. 

Q. 17.—Was the friend whom you wished to oblige in¬ 
terested in, or employed by, the Hew Almaden Company ? 
What was his name ? 

A.—Mr. Peachy, who is here present, and who represents 
the Hew Almaden Company. 

Q. 18.—How long is it since you entertained the opinion 


120 


■which, you have expressed in your testimony concerning the 
location and boundaries of this grant of Justo Larios, and par¬ 
ticularly as to the ridge X. Y. being the southern boundary 
delineated on the diseho, and there inscribed Sierra del Encino ? 

A.—Since my recent trip. 

Q. 19.—Had you not conceived and expressed some opinion 
on the subject before your recent visit to the mine? 

A.'—I may have expressed some opinion on the matter, after 
having seen some map of the country, and compared it with 
the papers, about a year or a year and a half ago, but I formed 
no definite opinion until this recent visit. 

Q. 20.—Were not your impressions, then, just what your 
opinions are now? 

A.—My opinions have not been changed, but have been 
strengthened. 

Q. 21.—Was not the map shown you a year or a year and a 
half ago, Lewis’ map in this case, the one now before you ? 

A.—The first map I saw was La Croze’s map, marked Ex¬ 
hibit “ J. M.,” from which examination I formed a partial, not 
a full opinion of the case; subsequently I saw a copy of the 
map of Lewis’ survey. 

Q. 22.—The time which you refer, or before, was your atten¬ 
tion called to the location and boundary of this grant, and 
were explanations of the papers of the grant and general fea¬ 
tures of the country, by parties in interest or by their counsel ? 

A.—The first time that I recollect anything about this claim 
or this map, was the time that this map of La Croze was re¬ 
turned to the Surveyor General’s office; I looked into the 
matter, at the time, at the request of no particular person ex¬ 
cept Col. Hays; I do not recollect, at that time, that any one 
interested spoke to me, but subsequently I have had conversa¬ 
tion about it with persons who I supposed were interested 
parties. Whilst this map was in the office under consideration, 
and before it was confirmed or approved by Col. Hays, I had 
very little conversation about it, it being a matter which Col. 
Hays took under his own consideration. 

Q. 23.—I)o you mean that neither before this map was re¬ 
turned to the office, nor during the time when it was in the 
office under consideration, you had discussed the location and 
boundaries of the Justo Larios’ grant, with parties interested 
in or for the Hew Almaden Mine? 

A.—I mean to say, that the time this map* was returned, I 
had a conversation with Col. Hays about the location, but as 
he took it under his special charge, I paid but very little atten¬ 
tion to it, and refrained from saying much to any one on the 
subject. Generally, I have had a good deal to do in the loca- 



121 


tion of grants ; but, about tliis one, I have bad nothing to do 
with it. 

Q. 24.—Have you, or not, during tbe time when you were 
employed in tbe Surveyor’s office, fully and often discussed tbe 
subject of this location with persons in tbe interest of tbe New 
Almaden Mine, and if so, when ? Please answer fully. 

A.—I recollect in a few instances of having conversations 
with persons about tbe location of this grant, but I never knew 
if they were interested or not; I have bad perhaps more con¬ 
versation with Mr. Halleck about it. I do not recollect of any 
one else who was particularly interested, except recently I have 
spoken to Mr. Peachy about it. 

Q. 25.—In tbe conversations or discussion with Mr. Halleck, 
and tbe other persons to whom you allude, was not Lewis’ map 
exhibited and explained to you ? 

A.—I bad seen tbe map once or twice before I went up ; but 
I do not recollect of any explanation being given to me. I 
recollect at one time comparing La Croze’s map with Lewis’ 
map, to see bow tbe lines agreed. 

Q. 26.—Was that at tbe time when La Croze’s map was un¬ 
der consideration in tbe Surveyor-General’s office ; if not, when 
was it ? By whom was Lewis’ map brought to your notice ? 

It was some time after that La Croze’s map was accepted, 
that I saw a copy of this map (Lewis’ map;) being in tbe 
draugbting-room, I went and compared them only as a matter 
of curiosity to myself. 

Q. 27.—When you discussed tbe subject of tbe location of 
this grant, did you not have Lewis’ map before you ? 

A.—I have never bad anything particular to say about tbe 
matter; tbe map may have been present as I have answered 
before. 

Q. 28.—As this map of Lewis’ is a private affair, no way be¬ 
longing to tbe Surveyor’s office, do you know bow it was that it 
became to be in tbe draughting room ? 

A.—It was brought in there to have a traced copy of a part 
of it made for some person; I took it up on my own accord, 
happening to see it there, and compared them together to sat¬ 
isfy my own curiosity. 

Q. 29.—It was only from such slight sources as these you 
have mentioned, that you derived tbe impressions which were 
lately so fully confirmed by your visit to tbe New Almaden 
Mine? 

A.—From tbe observations I bad taken from time to time, 
and from these sources. 

Q. 80.—What other observtions do you mean that you bad 
taken, besides those which you have testified ? 


122 


A.—From the general observation I have made from the 
time the survey was being made, the return of the survey and 
its final acceptation by the Surveyor General, and the observa¬ 
tions I had with several persons from time to time. 

Q. 31.—What year did you come to California, and from 
what place; where had you lived before ? 

A.—I came to California in June, 1851, from New York. 
I had lived in Cleveland and Columbus, in Ohio, and on Lake 
Superior. 

Q. 32.—Do you speak the Spanish language, so as to be able 
to converse in it ? 

A.—I understand some words of the language, but I do not 
pretend to converse in it. 

Q. 33.—Look at the diseno of Berreyesa, that of Justo Larios, 
and say what object upon the diseno of Justo Larios corres¬ 
ponds with the range on the diseno of Berreyesa marked Lo¬ 
mas Bajas, and first say what is the meaning of those words, 
Lomas Bajas? 

A.—I understand Lomas Bajos to mean low hills. I do not 
see anything to correspond. Berreyesa’s diseno is not a perfect 
delineation of the country; there is not a valley above the elbow 
of the Alamito Creek. Those hills of 1,700 to 1,800 feet high, 
ought not to be called low hills. What is called Lomas Bajas, 
on Berreyesa’s diseno may have been intended to be repre¬ 
sented as the Sierra del Encino, on Larios’ diseno. 

Q. 34.—Upon that supposition, what is there on the diseno 
of Justo Larios to correspond with the Sierra Azul, on the dis¬ 
eno of Berreyesa ? 

A.—On Justo Larios’ diseno, in the form of mountain ranges, 
there is no correspondence with that of the other. 

Examination adjourned until to-morrow, July 13th, 1858, at 
12 o’clock, M. 


San Francisco, July 30, 1858. 

Cross-Examination of Leander Ransom this day Con¬ 
tinued. 

Present: U. S. Attorney; A. P. Crittenden, for claimant. 

Q. 35.—What hills are those which are designated as Lomas 
Bajas, on the diseno of Berreyesa, on the west of the Arroyo 
los Alamitos? 

A. 35.—I suppose they are intended to represent the foot 
hills, or the first hills that you arrive at from the valley. 

Q. 36.—On that diseno where would be situated the hacienda 
of the Almaden mine ? 



123 


A. 36.—From this sketch, it would be very difficult to de¬ 
termine it; it is not a fair representation of the country. I 
suppose from the map that it would be somewhere near the 
bend of the arroyo opposite the eastern end of the Lomas Bajas 
before referred to. 

Q. 37.—Is there on the ground any range of hills which 
could possibly be intended to be represented by the range 
marked Lomas Bajas, except the range in which the Almaden 
mine is situated ? 

A. 37.—I should think the mine was situated in the Lomas 
Bajas before referred to. I should judge so from the course of 
the arroyo, but on the ground there is no valley such as is rep¬ 
resented on the diseno, between the Lomas Bajas and the Sierra 
Azul, but merely a ravine. 

Q. 38.—Looking at the diseno of Berreyesa, and taking the 
dotted line marked lindero as his western boundary in connec¬ 
tion with the call for that line in the grant to Berreyesa, is it 
not clear that Berreyesa’s western line, starting from the junc¬ 
tion of the Arroyo Seco and the Arroyo de los Alamitos, 
crosses the hills in which the Almaden mine is situated, and is 
prolonged until it strikes the main sierra, the words of the 
grant being translated thus: “For boundary the angle formed 
by the Arroyo Seco and that of the Alamitos southward, the 
eastern falda de la loma, situated in the center of the Canada, 
until reaching the sierra.” 

[Question objected to as assuming as facts things not proven 
or admitted.] 

A. 38.—In my opinion, the mountain on the north side of 
the creek, in which the mine is situated, is a portion of the 
sierra; the dotted line appears on the map to extend to the 
south side of the creek. 

[Answer objected to, as not responsive to the question, and 
question repeated.] 

Under the circumstances, I should run the line to the creek 
which heads in the mountains, as represented on the diseno. 

Q. 39.—Do you know, as a matter of fact, where a place 
called El Encino is ? 

A. 39.—When I was on the ground, there was a place 
pointed out to me as being called “El Encino.” I only know 
from that. 

Q. 40.—Do you know whether or not the range of hills, in 
which the Almaden and Gruadalupe mines are situated, has had 
always amongst the people of the country a name of its own 
by which it is distinguished from the sierra? 

A. 40.—It is a matter I know nothing about. 

Q. 41.—Have you any knowledge of the names and designa- 


124 


tions of natural objects in that vicinity except what you de¬ 
rived from the persons who were with you when you last 
visited it, and from the maps which you may have examined ? 

A. 41.—I do not know that I have. 

Q. 42.—When you made your examination of this coun¬ 
try, had you any other papers before you than the diseho of 
Justo Larios and the copy of Lewis’ map ? 

A. 42.—I had in addition to those mentioned a copy of Ber- 
reyesa’s diseno. 

Q. 43.—Is not the range of hills in which the Almaden and 
Guadalupe mines are situated separated along almost its whole 
length from the main sierra by the two streams, and by the 
ravines and gorges, the heads of those streams ? 

A. 43.—There are deep ravines through which the streams 
pass each way from a lower place in the mountain, and the 
streams branch and run down each way. The center portion 
of the mountain is connected, but is lower than either ridge 
The greater portion of the ridge in which the mines are 
situated is divided from the rest of the sierra by the ravines 
through which the streams run. 

LEANDER RANSOM. 

Subscribed and sworn to before me, this 30th July, 1858. 

cutler McAllister, 

U. S. Commissioner. 

(Indorsed.)—Filed August 7th, 1858. 

W. H. Chevers, Clerk. 

I, W. H. Chevers, Clerk of the District Court of the United 
States for the Northern District of California, do hereby certify 
the foregoing to be a full, true and correct copy of the original, 
now on file, and remaining of record in my office. 

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court this, 14th day of August, A. D., 
1858. 

[l. s.] W. H. Chevers, Clerk. 


125 


United States District Court, ) 
Northern District of California, j 

The United States ) 
vs. v 

Charles Fossatt. ) 

San Francisco, August 18, 1858. 

On this day, before the District Court of the United States, 
for the Northern District of California, duly authorised to 
administer oaths, etc., etc., came John A. Veatch, a witness 
produced on behalf of the United States, in case No. 132, 
being an appeal from the Board of Commissioners to ascertain 
and settle the private land claims in the State of California in . 
case No. 340 on the docket of the said Board of Commis¬ 
sioners, and was duly sworn, and testified as follows: 

Present: the District Attorney and Mr. Peachy, for the 
United States; Mr. Crittenden, for claimant. 

Questions by the District Attorney. 

Question .•—What is your name, residence and occupation ? 

Answer .•—John A. Yeatch; I reside in San Francisco; I am 
a mineralogist. I have visited the land in controversy in this 
case twice; once about twelve months ago, and once about two 
weeks ago, at the request of Mr. Peachy. I made myself as 
familiar with the locality as I could by riding over it during 
two days. I have acted as a surveyor, and consider myself 
competent to judge of the location of boundaries. 

I have seen what I snppose to be a copy of this diseno be¬ 
fore. I have no doubt from its general appearance that it was 
a copy. 

[Diseno in this case shown to witness.] 

I examined the ground with reference to this diseno. I 
should think there would be no difficulty in locating this land 
as it is laid down here. It is very definite and exact. This 
diseno seems to embrace a small valley, around which the 
Arroyo do los Capitancillos runs, bounded on the west by the 
Arroyo Seco, and on the south by the foot of the mountains. 
This diseno seems to convey the idea of the locality very 
clearly. There are but the two arroyos, and the mountains or 
hills on the south, so that there can be no mistake about the 
location. This Sierra del Encino is the foot of the moun¬ 
tains, according to my judgment. It is seemingly detached 
from the main mountain by an arroyo that runs from east to 
west, making a sharp hill between the higher mountain and 


126 


the plain; but I look upon this as only a bench-like portion of 
the mountain, which has been separated from it by the gorge 
cut down by the stream. 

The reason, I so consider it is, the gorge-like character of 
the valley of the little stream, and the sharpness of the ridge, 
and the elevation of the bottom of the gorge so considerably 
above the level of the valley. It is, I should judge, two or 
three hundred feet above it. 

From geological considerations also, I should consider this 
ridge clearly and distinctly a portion of the mountain. The 
ridge does not present the spine-like character which would 
show its detachment from the mountain, for it runs parallel 
with the general course of the latter. 

The portions of the streams not delineated on the diseho cut 
through the ridge represented thereon, and run behind it and 
parallel with the general course of the mountain. 

The Arroyo Seco heads in the sides of the mountain a little 
south of the New Almaden, and interlocks with the head 
waters of the Alamitos. The general course of the Arroyo 
de los Capitancillos, after leaving the plain, is north and south; 
the main branches inclining to the west, and interlocking with 
those of the Arroyo Seco. 

The ridge which these streams pass through and then in¬ 
cline towards each is the mining ridge. The two streams come 
together in a slight depression in the mountain side south of 
New Almaden. They do not actually join, but their head 
waters are separated by a ridge, which, as the streams pass 
each other, has a tortuous character. I mean that the head 
waters of the two streams interlock in a slight depression in 
the mountain side. 

Exhibit “ A ” is a profile of the mountain, showing the de¬ 
pression between the main mountain and the Almaden hill. 

No. 1 on the exhibit is the mine hill. No. 2 is the de¬ 
pression in which the arroyos Seco and Capitancillos head. 

[Exhibit attached to deposition of R. C. Matthewson shown 
to witness.] 

The additions in the exhibit give a fair representation of the 
country not delineated on the diseno. The Arroyo Seco is 
very accurately laid dov r n, according to my memory. I re¬ 
cognize it very distinctly. Also, the interlocking of the two 
little streams in a southerly direction from the mine hill. 

Cross-Examination. 

The point at which the bottom of the gorge was estimated 
by me to be about two or three hundred feet above the level 
was about half a mile above the Guadalupe mine. 


127 


The Guadalupe mine is, I think, about half mile, or more, 
above the point where the Seco turns the hill. At this point, 
half a mile above the Guadalupe mine, I estimated the ridge 
to be about one hundred feet above the bottom of the gorge, 
and some three or four hundred feet above the lowest point in 
the plain. I used no instruments in this examination. I used 
a method I have for measuring roughly in estimating the hight 
of the ridge above the gorge. I usually by this method ap¬ 
proximate pretty closely. 

Exhibit “A” represents a section or profile of the moun¬ 
tain running in a north-east and south-west direction. The 
point 3, I should think, would be not far from the entrance of 
the Capitancillos into the valley. 

Point 4 is the summit of Umunhum. This profile was 
drawn simply by the eye, from a point (8) on the first hill 
south of the depression. I understood that the depression 
south of the mine hill was two or three hundred feet below the 
mine hill. This exhibit was not drawn by any scale; it was 
simply to aid the memory with reference to the steps in the 
mountains. It is not to be relied on as representing the rela¬ 
tive vertical or horizontal distances between different points. 
It is merely to show the number of elevations and depressions 
on the line of intersection. The lines 4, 5, 6, 7, and the other 
lines parallel to them, are not intended to represent anything 
in nature. 

[Exhibit “J. M.,” annexed to deposition of La Croze, shown 
to witness.] 

This is a tolerably correct representation of the country. It 
conveys an idea to me of the country, but as I have never 
measured the courses and distances, I cannot say whether it is 
perfectly accurate. The fall in the Arroyo Seco, below the 
Guadalupe mine, is, I should think, very considerable. It is 
much greater as you approach the head of the stream. 

The exhibit attached to Matthewson’s deposition is, of course, 
a very rough sketch ; it gives no idea of the comparative eleva¬ 
tions of the mountains. It merely shows that there is a moun¬ 
tainous country to the south of the ridge shown on the map. 

The large map, “A. P. C.,” is much more accurate. It 
seems to have been made with more care. 

I could not, without verifying it by actual measurement, say 
that any topographical sketch was correct. 

The idea conveyed to my mind is, that the Sierra del En- 
cino, marked on the diseno, was intended to represent the 
mining ridge. I form this idea from the map alone. I do not 
know where the mountains called Sierra del Encino are. I do 
not know whether the mine ridge has a name of its own dis- 


128 


tinct from that of the sierra. I suppose the Sierra del Encino 
to be the mining ridge, assuming that the ridge represented on 
the diseno was intended to represent the first ridge that rises 
out of the valley. 

[The Berreyesa diseno is shown to witness.] 

I do not think that from this I could point out anything. 
I do not recognize any country with which I am acquainted. 

Assuming the hill marked “Lomita” to be the low hill in 
the center of the plain, and the point near the word “ casa ” to 
be the junction of the creeks, then I should say the Lomas 
Bajas were the mining ridge. I have never seen this diseno 
before; nor the grants to either Justo Larios or Berreyesa. 

I think that the foot of the mining ridge is topographically 
and geologically the foot of the mountain. 

I have some experience in surveying; have located and sur¬ 
veyed lands. If I had to locate the dotted line, as delineated 
on the diseno, and according to the description in the Ber¬ 
reyesa grant, I should say there was a hopeless discrepancy 
between the line as delineated and the line as described. 

Q.—In what does that discrepancy consist ? 

A.—The description directs me to run to the sierra, while 
the line as delineated terminates at the creek, which I consider 
some distance up the side of the sierra. 

Q.—In locating that line, would you be governed by your 
own opinion as to what ought to be called the sierra, rather 
than by the express declaration of the grantor as to what he 
meant by the “sierra”? 

A.—If it was very clear to my mind that something else 
than what I considered the sierra was intended by him by that 
designation, I should locate the line according to the intention. 

Q.—Is it not clear that the grantor did not intend by “sierra” 
the mine ridge, when on the diseno to which he refers he des¬ 
ignates the main mountain as the sierra; gives to the mine 
ridge the name “Lomas Bajas,” and delineates the line as 
crossing the mine ridge and terminating at the creek ? 

A.—It does not seem to me to be very clear from the objects 
in nature, from the fact that the mining ridge is clearly a por¬ 
tion of the sierra, and the general rudeness of the drawing. 

In my opinion, by stopping at the mining ridge, I would 
have to disregard the diseno, and by running to the creek I 
would have to disregard the description. 

If I discovered that the people discriminated between the 
mining ridge and the sierra, and called the former by a dif¬ 
ferent name, it would tend to throw light on what the grantor 
meant by “ sierra.” 

JOHN A. VEATCH. 


129 


Taken and subscribed in open court, this 18th August, 1858. 

OGDEN HOFFMAN, 

U. S. District Judge. 

(Indorsed.) Filed August 18th, 1858. 

W. H. Chevers, Clerk. 

I, W. H. Chevers, Clerk of the District Court of the United 
States, for the Northern District of California, do hereby cer¬ 
tify the foregoing to be a full, true and correct copy (except¬ 
ing only the exhibit therein referred to) of the original, now 
on file and remaining of record in my office. 

Witness, my hand, and the seal of the said court, this 19th 
August, A. D., 1858. 

[l. s.] W. H. Chevers, Clerk. 


United States District Court, ) 
Northern District of California, j 

The United States 
vs. 

Charles Fossatt. 

San Francisco, August 19, 1858. 

On this day, before the District Court of the United States, 
for the Northern District of California, duly authorized to ad¬ 
minister oaths, etc., etc., came Antonio Sunol, a witness pro¬ 
duced on behalf of the United States, in case No. 132, being 
an appeal from the Board of Commissioners to ascertain and 
settle the private land claims in the State of California, in case 
No. 340 on the docket of said Board of Commissioners, and 
was duly sworn and testified as follows—his evidence being 
interpreted by J. Edgar Grymes, a sworn interpreter: 

Present: the District Attorney and Mr. Peachy, for the 
United States; and Mr. Crittenden, for claimant. 

Question by District Attorney. 

Question .—What is your name, age and residence ? 

Answer .—Antonio Sunol; 61 years; I live at the pueblo of 
San Jose. I have resided in California 42 years. I lived for 
a short time on a rancho near the rancho of Justo Larios. It 
is named Santa Teresa. I am acquainted with the Canada de 
Capitancillos. When I first knew it, Leandro Galindo was 

9 


* 



130 


living there. He lived at the entrance of the Canada, on the 
side of San Jose. I cannot state precisely the year when he 
first went to live there, but I think it was in 1826 or 1827. 
He lived about a mile, or a quarter of a league, from the Ar¬ 
royo Seco, and near the Arroyo de los Capitancillos. 

I do not know where the road from San Jos6 to the hacienda 
crosses the Arroyo Seco. I have not been there for a long 
time. Justo Larios lived for a time at the house of Galindo. 
He lived afterward further in the Canada. 

I cannot precisely state the distance of the residence of 
Justo Larios, I have last spoken of, from the junction of the 
Arroyo Seco and the Arroyo de los Alamitos. 

I cannot say whether it was the same house that Grove C. 

t/ 

Cook occupied. 

There was a certain distance from the house to the junction 
of the creeks, but I cannot state it. 

From this last house of Justo Larios to the Capitancillos was 
perhaps two or three hundred varas. 

The distance between, from the house of Galindo to that of 
Justo Larios, I should consider to be about a league. 

Justo Larios had a manufactory of soap in both houses; first 
at Galindo’s and then at his own. 

There was a cultivation in the neighborhood of both houses. 

I do not remember any other house that either Justo Larios 
or Galindo had on the rancho. 

I don’t think Justo Larios married a relative of Galindo’s. 
The families of Larios and Galindo are different. 

I have never heard of any Sierra del Encino. 

I never heard of any range of hills called La Cuchilla de la 
Mina de Luis Chaboya. I have heard of La Mina de Luis 
Chavoya. 

I know where the old mouth of the Almaden mine was. It 
is in the Sierra Azul. 

I know an oak tree on the top of the mountain, known as 
the Encino de la Sierra Azul. It is quite on the top of the 
mountain. 

Cross-Examined. 

I cannot state in what year Justo Larios first went to live on 
the rancho. 

I cannot remember the year he received a concession. I 
believe he at that time lived in the Canada in the second house. 
I cannot remember truly. He continued thereafter to live in 
the second house. 

I cannot say how long he lived in the first house. It ap¬ 
pears to me he might have lived there two or three years. lie 


131 


sold it afterward. Galindo did not live tliere at the same time 
■with Justo Larios. He quitted it and came to San Francisco, 
when Justo Larios came into it. 

When Justo Larios left it, he demolished it. 

I don’t know whether he cultivated land around it after he 
had left. 

After he left the first house and went to the second, he had 
all his cultivation around the latter. 

It appears to me that the mines of San Antonio, of Guada¬ 
lupe, and the Almaden are in the same ridge. 

There are some small creeks between this ridge and the 
mountains behind. 

The ridge has been called Lomas, or “Lomas Huertas de la 
Sierra Azul,” by the people of the country. 

I never heard the name Cuchilla de la Mina given to these 
hills by the people of the country. 

I never heard of any name by which they were distinguished 
by the people of the country from the main sierra. 

Very likely I-told Mr. Laurencel that these hills were called 
Lomas Muertas, or Lomas Muertas de la Sierra Azul. 

Perhaps I told him they were called Lomas Muertas de los 
Capitancillos. I will not say to the contrary. 

I don’t know the name of the creek which runs near the 
Guadalupe mine. 

I don’t recollect whether the Galindos had a corral at the 
source of that creek. 

I have had some difficulty with Mr. Laurencel, but it is 
passed. 

We have called all the places around the Guadalupe the 
Mine of Guadalupe. We gave it this name when we dis¬ 
covered it. 

I mean to say that the whole place around there is called 
the Mine of Guadalupe. 

The mine of Luis Chavoya, where they first commenced to 
work the mine of Hew Almaden. 

This mine was generally known to the people of the country. 

After it was discovered we always said u the mine of Cha¬ 
voya, which is in the Sierra Azul.” 

The reason we did not say “the mine of Guadalupe, which 
is in the Sierra Azul,” was because we had given the sur¬ 
rounding country the name of Guadalupe. 

Direct, Besumed. 

I know well the original mouth of the mine ; that is to say, 
that of which we gave the possession. 

The Chavoyas discovered the mine in 1824. I had an in- 


132 


terest in it. It was worked by them. We took out the ore, 
and behind the house of Berreyesa we ground it between two 
stones. We then put some quicksilver in, and got nothing out. 

[It is admitted that the witness attends at the request of Mr. 
Peachy.] 

ANTONIO SUNOL. 

Taken and subscribed in open Court, this 19th August, 1858. 

OGDEN HOFFMAN, 

District Judge. 


(Indorsed.) Filed August 19th, 1858. 

W. H. Chevers, Clerk. 

I, W. H. Chevers, Clerk of the District Court of the United 
States, for the Northern District of California, do hereby cer¬ 
tify the foregoing to be a full, true and correct copy of the 
original, now on file, and remaining of record in my office. 

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court, this 19th day of August, A. D., 
1858. 

[L. S.] 


W. H. Chevers, Clerk. 


133 


United States District Court, ) 
Northern District of California, j 

The United States 

vs. 

-Charles Fossatt. 

San Francisco, August 25th, 1858. 

On this day, before W. H. Cheyers, a Commissioner of the 
United States for the Districts of California, duly authorized 
to administer oaths, etc., etc., came John C. Hays, a witness 
produced on behalf of the United States in case No. 132, be¬ 
ing an appeal from the Board of Commissioners to ascertain 
and settle the private land claims in the State of California, in 
case No. 340 on the docket of said Board of Commissioners, 
and was duly sworn, and testified as follows: 

Present: the U. S. District Attorney and Mr. Peachy, for 
the United States; and Mr. Crittenden, for the claimants. 

Question by the United States Attorney. 

Question 1.—What is your name, age and place of residence, 
and what your occupation ? 

Answer. —John C. Hays; 42 years of age; reside in Alameda 
county, California; and lately was U. S. Surveyor General for 
California. 

Q. 2.—Look at the map marked Exhibit <{ J. M.,” attached to 
the deposition of John La Croze, taken in this case, and state 
your reasons for approving the location of the rancho “Los 
Capitancillos ” as it is located on that map. 

[Question objected to by Mr. Crittenden, claimant’s counsel, 
on the ground that it asks the opinion of the witness and the 
argument on which he reached a certain conclusion, and is 
immaterial.] 

[Question withdrawn for the present.] 

Q. 3.—Were you on the ground when the survey of this 
rancho was being made ? 

A.—A portion of the time. 

Q. 4.—Did you make a personal examination of the tract of 
land which you were about to locate ? 

A.—A partial one. 

Q. 5.—At whose instance did you make the location ? 

A.—I think it was at the instance of Mr. Crittenden; won’t 
be positive about it. 

Q. 0.—Please to state why, in locating this rancho, you fol¬ 
lowed the Arroyo Seco, which is on the side of the establish- 


134 


ment of Santa Clara, from its junction with the Arroyo cle los 
Capitancillos up to the hills, and around the bend, which it 
makes at Stations 71, 70, 69, 68, 67, and thence up to Station 
28, as a part of the southern boundary of this rancho ? 

[Objected to by counsel for claimant, on the ground that it 
asks the opinion of the witness, and is irrelevant and inad¬ 
missible.] 

A.—Because I thought the decree of confirmation made it 
one of its boundaries, and I think so yet. 

Q. 7.—Please to state from what part of the decree of the 
Land Commissioners you drew this inference. 

A.—From that part which begins as follows, to-wit: “And 
the said division line being the same line of division adopted 
in a partition of said rancho, made by William Wiggins, John 
B. W T eller and James M. Jones, as will appear by their deeds 
of partition, recorded in the office of Becorder of Deeds for 
Santa Clara county,” etc. 

Q. 8.—Did you examine the deed of partition referred to in 
that part of the decree ? 

A.—As well as I can recollect, I think I did, or a copy of it. 

Q. 9.—According to your construction of the decree of the 
Board of Land Commissioners, upon which construction you 
acted in making this location, was the southern boundary, or 
what is called on the diseno the Sierra del Encino, positively 
fixed by the decree, or was it left to the discretion of the Sur¬ 
veyor General to locate that sierra ? 

A.—I construed the decree as fixing the sierra by fixing a 
line running from Station 58, on the Arroyo Seco, across to 
Station 59, on the Arroyo de los Capitancillos. I consider that 
the decree fixed that point, and I had to find that point. 

R. 10.—Was that point described as being on the Arroyo 
Seco in the deed of partition referred to in the decree of the 
Commission ? 

A.—Don’t recollect whether it was or not. 

Q. 11.—Do you know where the Almaden and Guadalupe 
mines are situated ? 

A.—Yes, sir; pretty near. Ilave been to them. 

Q. 12.—In locating the western boundary of this rancho, 
why did you run across the spur of the sierra in which these 
mines are situated ? 

A.—I think the decree decided that matter. 

Q. 13.—The portion of the decree to which you have re¬ 
ferred is the deed of partition between Wiggins, Weller and 
Jones, as explained in } r our answer to question 7th, can you 
recollect the terms of the said deed which fixed that point on 
the Arroyo Seco ? 


135 


A.—I cannot. It was the general tenor of the decree and 
deed. I cannot recollect the particulars. A long time has 
elapsed. 

Q. 14.—In locating the sierra on the south of this rancho, 
did you determine its location? 

A.—I did not consider that I did. I thought that was de¬ 
termined by the decree. 

Q. 15.—At the time this tract was located, was there not a 
dispute as to where the southern boundary line should be run, 
whether it should run along the Arroyo Seco to its head¬ 
waters, and thence across to the headwaters of the Arroyo de 
los Alamitos, or whether it should be run from the point where 
the Arroyo Seco emerges from the sierra along the northern 
base of that spur of the sierra in which the Almaden and 
Guadalupe mines are situated, until it intersected the Ber- 
reyesa line. Please now state whether in locating the southern 
boundar}^ of this rancho, as you have done on Exhibit “ J. M.” 
you undertook to decide upon this location in preference to 
the other, or whether you construed the decree of the Board 
as determining which of the two locations should be made ? 

A.—I only undertook to decide so far as the decree was 
concerned. I did not consider that I had any discretion to de¬ 
cide between the two locations, but that the location as I made 
it was determined by the decree of the Board of Land Com¬ 
missioners. The only discretion I had was to determine the 
boundaries of the decree. 

Q. 16.—In determining the southern boundary of this 
rancho, were you not also guided by the decree of confirma¬ 
tion in the case of the Guadalupe Mining Company ? 

A.—I had all the papers before me, and I think I was. 

Q. 17.—Look at the decree in the claim of the Guadalupe 
Mining Company, and say if it did not fix a point in the 
southern boundary of this rancho, so positively as, in your 
opinion, to leave you no discretion in locating the rancho on 
the south different from what you have done ? 

A.—You can’t do it and follow the decree, that is very 
plain, because the Guadalupe Mining Company claim under 
the same grant with Fossat, and the decree of confirmation in 
the Guadalupe claim fixes the location as it is made on the 
map “ J. M.” The portion of the decree which fixes it is as 
follows, to-wit: “ Commencing at a point on the north bank of 
the Arroyo Seco, just 400 yards distant on the surface of the 
earth from a point on the same bank of the Arroyo Seco, 
south 10 deg. west of the entrance 'of the Guadalupe mine, 
which point of commencement is intended to be about 400 
yards east of the entrance to said mine,” etc. 


136 


Q. 18.—Then as Fossat and the Guadalupe Mining Company 
claim different portions under one grant, and as the location of 
the land confirmed to the Guadalupe Mining Company had to 
be made according to the decree which adopted the boundaries 
described by the claimants, I understand you to say that those 
boundaries fixed the southern line of the rancho in such a 
manner that you could not locate it differently from what you 
have done. Am I not correct ? 

[Objected to as leading.] 

A.—Certainly, and follow the decree. 

Examination adjourned until to-morrow at 10 o’clock, A. M. 

W. H. CHEVERS, 

U. S. Com’r. 


San Francisco, California, ) 
August 26, 1858, 10 o’clock, A. M.) 

♦ 

Examination of John C. Hays Resumed from Yesterday. 

Present: the U. S. Attorney and Mr. Peachy, for the United 
States; and Mr. Crittenden, for claimant. 

Cross-Examination. 

Question 19.—When you certified the map of which Exhibit 
“ J. M.” is a copy, and made the location of the land as repre¬ 
sented on that map, had you any doubt as to the correctness of 
that location under the decree of confirmation by the Board ? 

Answer. —No, sir. 

Q. 20.—That location was made by you as U. S. Surveyor 
General for California, was it not ? 

A.—Yes, sir. 

Q. 21.—When was that location made? 

A.—In 1855. 

Q. 22.—Since that time have you had occasion often to ex¬ 
amine that decree of confirmation, or to refer to that surve}^ ? 

A.—I have very often referred to the survey. 

Q, 23.—Have you now a distinct recollection of the terms of 
that decree of confirmation, and of the contents of the papers 
examined by you at the time you made the location of the 
land ? 

A.—I have a tolerably distinct recollection of the terms of 
the decree, and of the most important papers that governed 
me in the location of the land. 



137 


Q- 24.—Ilave you now a distinct recollection of all the rea¬ 
sons which then operated on your mind to induce you to locate 
the southern line of the grant as you did locate it ? 

A.—I have a tolerably distinct recollection of them. 

Q. 25.—Were there no other reasons than the one you men¬ 
tioned, that is the designation of the dividing line between the 
lands confirmed to Fossatand the Guadalupe Mining Company? 

A.—My principal reason for going over to the Arroyo Seco 
was, that the dividing line between the Guadalupe Mining Com¬ 
pany’s claim and this claim of Fossat, by the decrees of confirm¬ 
ation, had to commence at a point on that arroyo. The decree 
of confirmation called for the Berreyesa line on the east. 

. Q* 26.—In locating this land, you necessarily exercised a 
discretion, did you not, so far as to determine on the ground 
what were the objects and lines intended, and referred to in the 
decree of confirmation? 

A.—Yes, sir. 

Q. 27.—In any of the answers you have made to questions 
put to you on your direct examination, do you mean to be un¬ 
derstood that you did not exercise your judgment and discre¬ 
tion to that extent ? 

A.—No, sir. 

Q. 28.—The decrees of confirmation in the case of Charles 
Fossat, calls for the sierra as the southern boundary of the 
land: did you not ascertain and determine on the ground, 
what was meant by the sierra in the decree ? 

A.—Yes. The point between the Guadalupe Mining Com¬ 
pany’s claim and the claim of Fossat, fixes the sierra. 

Q. 29.—You did determine, did you not, that by the sierra, 
the decree did not mean the ridge of hills in which the Guada¬ 
lupe and Almaden mines are situated, but did mean the main 
range of mountains to the southward of that ridge ? 

A.—That was my interpretation of the decree. 

Q. 30.—In that portion of the decree of confirmation in this 
case, to which you have referred in your answer to’Question 7 
of your direct examination, and in the deeds of partition re¬ 
ferred to in the decree, do you find anything which indicates 
or directs that the dividing line between the claims of Fossat 
jmd the Guadalupe Mining Company shall commence or termi¬ 
nate at a point on the Arroyo Seco ? Please examine that part 
of the decree and the deed referred to. 

A.—I do not find it in that portion of the decree, and the 
deed referred to. I should have added in my answer to Ques¬ 
tion 7, that I drew my inference from the portion of the de¬ 
cree I referred to, together with the decree of confirmation in 
the case of the Guadalupe Mining Company. 


138 


Q, 31.—What papers had yon before you when you located 
this land ? 

A.—I had all the papers referring to the Justo Larios grant; 
also the diseho of Berreyesa; whether I had the Berre}msa 
grant, or any translation of it, I do not recollect; probably I 
had; I had all the papers I thought necessary to locate the 
land. 

Q. 32.—Do you not recollect examining at that time the Ber¬ 
reyesa grant, or a translation of it, and particularly that por¬ 
tion of it which says that the land granted to Berreyesa is 
bounded on the west by the rancho of the citizen Justo Larios, 
which has for boundary the angle which the Arroyo Seco 
forms, and that of the Alamitos southward, the eastern base of 
the small hill situated in the center of the Canada till it reaches 
the sierra, and that portion of the grant which refers to the 
diseno? 

A.—Yes, sir, I recollect particularly to have examined that 
portion of it relating to boundaries. 

Q. 33.—In locating the eastern boundary line of the Justo 
Larios grant, and especially in determining whether that line 
starting at the junction of the Arroyo Seco and the Arroyo de 
los Alamitos, and passing by the small hill in the plain, should 
terminate where it first struck the mine ridge, or whether it 
should cross the mine ridge and be prolonged until the Arroyo 
de los Alamitos at the foot of the main sierra, was not your 
j udgment materially influenced by these facts ?— 

First—That the grant to Berreyesa declares his land to be 
bounded on the west by the rancho of Justo Larios, and then 
goes on to declare what the boundary of Justo Larios is, and 
shows that it extends to the sierra; 

Second—That the diseno of Berreyesa, referred to in his 
grant, delineates that western line of Berreyesa, and shows 
that it is prolonged until it strikes the Arroyo de los Alamitos ? 

[Objected to by Mr. Peachy, as leading.] 

A.—My judgment was somewhat influenced by those facts, 
but principally by that portion of the confirmation of the claim 
of the Guadalupe Mining Company which fixed a point in the 
southern boundary of the land confirmed to that company at 
Station 58 in La Croze’s Survey. 

Q. 34.—Do you wish your answer to Question 14 of the di¬ 
rect examination to stand as it is written down, or have you 
any explanation or qualification to make of it ? 

A.—I did exercise my own discretion in finding out the 
point on the Arroyo Seco pointed out in the decree of the 
Board; but I did not exercise my discretion in determining 
between the two claimed locations of the sierra. 


139 


Q* 35.—Is there anything in the decree of confirmation in 
this case which fixes the sierra by fixing a line running from 
Station 58 on the Arroyo Seco, on La Croze’s map, across to 
Station 59 on the Arroyo de los Capitancillos ? 

A;—Yes ; together with the confirmation to the Guadalupe 
Mining Company. 

Direct, Resumed. 

Q. 36.—By what law did you locate this land before a de¬ 
cree of final confirmation ? 

[Question objected to as new matter not drawn out on cross- 
examination.] 

A.—Under instructions issued to my predecessor upon ap¬ 
plication of the parties, and at the expense of parties, to make 
preliminary survey of the land. 

Q. 37.—It is well known that there are other ranchos adjoin¬ 
ing this one of Larios, to wit: Bernal’s, on the north; Nar¬ 
vaez’s, on the west; Berreyesa’s, on the east; and the Almaden 
Mine and lands on the south. Did you notify the claimants of 
any of these ranchos of your intention to make a survey and 
location of the Larios rancho? 

[Question objected to on same ground as last.] 

A.—I don’t know whether the Deputy Surveyor did or not. 
I did not, myself. 

Q. 38.—Did you not have on the ground with you, when 
you were making an examination of this rancho, a copy of the 
decree of confirmation by the Commissioners of the land 
claimed by the Guadalupe Mining Company ? 

A.—Yes, sir. 

Q. 39.—Was not this southern boundary of Larios’ rancho, 
survejmd and located by your Deputy, La Croze, according to 
your instructions ; and was not the eastern boundary of this 
rancho also located by Mr. La Croze, by your direction ? 

A.—Yes, sir. 

Q. 40.—I see noted on this map, outside of the land of La¬ 
rios as thereon located, the name of the “Rancho of San Juan 
Bautista,” claimed by the heirs of Augustin Narvaez, formerly 
part of the “Establishment of Santa Clara;” and I also see 
noted on this map the “Rancho Santa Teresa,” claimed “by 
the heirs of J. Joaquin Bernal; ” and I also see noted on this 
map the “Rancho of San Yicente, claimed by the heirs of J. 
Reyes Berreyesa.” Do you know why Mr. La Croze did not 
note on this map the position of the mines of New Almaden, 
or of the boundaries of the land claimed by Andreas Castillero? 

A.—The Surveyor is compelled to note the names of the 
adjoining ranchos when he knows them, but is not compelled 


140 


to note any objects within the survey without the line runs 
very near, or comes in contact with the object. 

Q. 41.—Who was with you when you made the recognizance 
of this rancho? 

A.—I think, Mr. Laurencel, Mr. La Croze, (the surveyor 
now with me,) Major Caperton, and several others were with 
me. None of the owners of the adjoining ranchos were with 
me that I know of. 

Cross-Examination, Resumed. 

Q. 42.—Whose duty was it to give notice to owners of the 
adjoining land of an attempted survey? 

A.—The Deputy Surveyor’s. 

Q. 43.'—Had Mr. Peachy any knowledge that this survey 
was being made, or about to be made, and was Mr. Peachy 
present during any part of the time ? 

A.—I did not notify Mr. Peachy, but I was with him on the 
rancho after I had made the preliminary examination. 

Q. 44.—Did not Mr. Peachy know before you left town that 
you were going to make that survey, and did not Mr. Peachy 
say he would meet you there ? 

A.—I don’t recollect telling Mr. Peachy I was about to 
make this examination. I recollect meeting Mr. Peachy the 
same day that I had concluded the examination, at the Alma- 
den mines, and riding with him from the Hacienda on to the 
survev. 

Q. 45.—How far is the Hacienda of the mine from the house 
of Mr. Laurencel, where you stayed while you were engaged 
in making the preliminary survey ? 

A.—About a league—three miles. 

JOHN C. HAYS. 

Sworn to and subscribed, August 26th, 1858, before me. 

W. H. CHEYERS, 

U. S. Commissioner. 

(Indorsed.)—Filed August 26th, 1858. 

W. H. Che vers, Clerk. 

I, W. II. Che vers, Clerk of the District Court of the United 
States for the Northern District of California, do hereby certify 
the foregoing to be a full, true and correct copy of the original, 
now on hie, and remaining of record in my office. 

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court this, 27th day of August, A. D., 
1858. 

[l. s.] W. H. Chevers, Clerk. 


141 


United States District Court, ) 
Northern District of California, j 

The United States ) 

VS. V 

Charles Fossatt. ) 

San Francisco, Aug 26, 1858. 

On this clay, before W. H. Chevers, a Commissioner of the 
United States, for the District of California, duly authorized to 
administer oaths, etc., etc., came Jose Maria Amador, a witness 
produced on behalf of the United States, in case No. 132, 
being an appeal from the Board of Commissioners to ascertain 
and settle the private land claims in the State of California in 
case No. 340 on the docket of the said Board of Commis¬ 
sioners, and was duly sworn, and testified as follows-—his 
evidence being interpreted by Richard Tobin, a sworn inter¬ 
preter: 

Present: U. S. District Attorney and A. C. Peachy, Esq. 
for the United States; and Mr. Crittenden and Mr. Randolph 
for the Claimant. 

Questions by U. S. District Attorney. 

Question 1.—What is your name, age, and place of residence? 

Answer. —Jose Maria Amador; sixty-eight years of age, and 
I live at the Mission of San Jose. 

Q. 2.—-Do you know the Rancho de los Capitancillos, and 
the adjoining country ; and for how long have yon known it ? 

A.—I know the Canada de los Capitancillos and the adjoin¬ 
ing country; and I have known them since they were first 
taken up or occupied. 

Q. 3.—By whom was the Canada first occupied? 

A.—By Macario Castro, deceased. 

Q. 4.—Did Macario have a corral on that land ? 

A.—He had. 

- Q. 5.—Whereabouts on the land was it ? 

A.—About two thousand varas above the forks of the ar* 
royo, on the southern side about the middle of the Canada ; I 
mean the forks of the Arroyo Seco and the Arroyo de los Cap¬ 
itancillos, or Alamitos, as it is now called. The Arroyo Seco 
is a small arroyo running down from Berreyesa’s house. 

Q. 6.-—Do you know the arroyo now called the Arroyo de 
los Alamitos ? If you do, state by what name that arroyo was 
formerly known. 

A.—I do. It was always known in former times as the Ar¬ 
royo de los Capitancillos. 


142 

Q, 7.—How did you know the situation of the corral of 
Macario ? 

A.—Because I saw it with, my eyes. 

Q. 8.—Were you often on the land, or did you live there at 
any time ? 

A.—I did not live there ; but when the deceased, Macario, 
left the corral and took his cattle away from it, my father took 
possession of it by permission of the Alcalde of San Jose, and 
I also kept some cattle there myself. It was in this manner I 
became acquainted with it. 

Q. 9.—Did you know the land when Galindo lived on it ? 

A.—I did. 

Q. 10.—How much land did Galindo claim at that place, and 
where was it situated ? 

[Objected to by Mr. Kandolph, because this witness is in¬ 
competent to prove the claim or the extent of the land claimed 
by Galindo; and because, what Galindo may have claimed is 
irrelevant to the present issue; and further, because the claim 
of Galindo is matter of record, and already in evidence in this 
case.] 

A.—As I understood, he claimed a league within the Canada. 

Q. 11.—Do you know any sierra in that neighborhood 

which was termed-[The District Attorney here says that he 

proposes to ask this witness, whether the sierra to which he re¬ 
fers in this question was known by a certain name which he is 
about to mention to the witness; whereupon the attorney for 
the claimant objects to the question being put in that form, as 
obviously leading, and desires the District Attorney to ask the 
witness by what name the sierra was known, and without sug¬ 
gesting in his question any name.]-Sierra del Encino? 

A.—No, sir, I do not know it. 

Q. 12.—Do you know any place that was called El Encino? 

A.—I do. 

Q. 13.—Where and what was it? 

A.—It was called El Encino Coposo de la Sierra Azul. It 
is on the Sierra Azul, near the Guadalupe Mine, at the right- 
hand side as you go up the sierra. 

Q. 14.—Do you know a place in that neighborhood called 
La (Juchilla de la Mina de Luis Chabolla? 

A.—No, sir, I do not. 

Q. 15.—Do you know a place called Cuchilla de Santa Te¬ 
resa, and if so, where is it ? 

A.—I do. It is the place where Galindo’s house was. It 
divides the Canada in two, and runs towards Murphy’s rancho. 
It runs along side the arroyo: I mean that the Cuchilla de 
Santa Teresa and the Sierra Azul, form the Canada. 




143 


Q- 16.—Do yon know the old mouth of the Almaden mine, 
and if you do, what is the name of the place upon which it 
was situated? 

A.—I do. It was situated where it is now, in the same sierra 
where it was discovered. I don’t know what name they gave 
it. I know where it is, and could point it out. It is on the 
Lomas Bajas de la Sierra Azul. It is in the Sierra Azul itself. 
The sierra descends regularly; there is no breach, nor separa¬ 
tion in it. The mine is on a low loma. It is all known as the 
Sierra Azul, from the foot to the top of it. 

Cross-Examination. 

Q. 17.—How long have you been in town? 

A.—Eleven days to-day. 

Q. 18.—Where have you been staying in town? 

A.—At the California Hotel. 

Q. 19.—Who pays your expenses? 

A.—I don’t know. Mr. Campbell gives me two or three 
dollars at a time, but I don’t know where the money comes 
from. 

Q. 20.—Is that the Mr. Campbell who is the son-in-law of 
Antonio Maria Pico, and who is one of the attorneys for the 
Almaden Company ? 

A.'—He is the son-in-law of Antonio Maria Pico, but I don’t 
know whose lawyer he is. I don’t know whether the money 
comes from his own pocket, or whether it comes from the com¬ 
pany. 

Q. 21.'—When it is all over, and you can go back home 
again, how much money are you to get for your trouble in 
coming down here to testify ? 

A.—Nothing. I have been promised no pay, except that I 
should come and testify and my expenses should be paid. 

Q. 22.—Are you not now a poor man ? , Have you not in 
some manner lost your rancho and cattle, and usually find it 
very hard to raise even a small sum of money ? 

A.'—I am. I support myself by my labor. I have lost it 
all in law suits. My labor furnishes me with enough for the 
support of myself and family. 

Q. 23.—Who was the person who asked you to come here 
and testify, promising to pay your expenses; and how long 
ago ? 

A.—It is eleven days ago to-day since I left my home; I 
*was requested to come and testify what was the truth by An¬ 
tonio Maria Pico and Mr. Campbell. I came to testify because 
a relation of mine, Antonio Maria Pico, asked me to come. 
Mr. Campbell is a son-in-law of Antonio Maria Pico. 


144 


Q. 24.—Have you not had some talk with Pico and Camp¬ 
bell about the mine of New Almaden, and the place where it 
is situated, and did not Mr. Campbell and his father-in-law, 
Pico, agree with you about its being all one sierra ? 

A.—They had no conversation with me, as they knew I had 
lived such a very long time at the pueblo, and knew all about 
the sierra; they asked me to come and testify. It was not ne¬ 
cessary for any one to tell me it was all one sierra, as I knew 
that myself. They only asked me if I knew the place—if it 
was one sierra—and I said yes, and that I had known it so 
long ; and I stated to them what I have stated here. They 
told me about the law suit they had. 

Q. 25.—-What law suit was it they told you they had ? 

A.—They did not tell me they had any law suit. They 
only told me they wanted me to come and testify in relation to 
a mistake, or some suit about the New Almaden mine. 

Q. 26. What mistake was it that they spoke of—was it a 
mistake about the true name of the place where the mine was 
situated ? 

A.—They did not speak to me about any mistake. They 
merely requested me to come and testify as to what was the 
true place and name of the encino, and the Sierra Azul, and 
to clear up all the mistakes as to those matters. They invited 
not only me, but others also. 

Q. 27.*—Who were those other persons invited by Campbell 
and Pico to come and testify? 

A.—Those whom I know were Suiiol, Romero and myself. 

Q. 28.—‘What was the reason that the people called that 
Canada los Capitancillos ? 

A.—Since I have had the use of reason, I have known it bv 
the name of Los Capitancillos. I don’t know why the old in¬ 
habitants gave it that name. 

Q. 29.—Don’t the words Los Capitancillos, mean the little 
captains ? Do you not remember to have heard the old people 
say that they called the Canada by that name because a long 
time ago, two or three Indian Chiefs, or Captains, used to live 
there, and that they had their ranclieria on the stream not far 
from where the Guadalupe mine is now, and that they used 
some times to camp where the house of Andres Martinez is 
now ? 

A.—Those words mean the little captains. I never did hear 
them say that that was the reason why they called it Los Cap¬ 
itancillos. That could not be the reason, because there were 
Indians all over that part of the country, and each tribe had 
its own chief. I have heard the old people call it by that 
name, but don’t know why they so called it. I have seen 


145 


rancherias all along the Canada, but do not know and have not 
heard the old people say why that name was given it. 

Q. 30.—Did you ever hear of the mine of Luis Chabolla? 
If so, where was that mine ? 

A.—I heard that Luis Chabolla for some reason had dug in a 
hole which had formerly been made by the Indians. I think 
it is the same as the Almaden. 

Q. 31.—Do you know the mine now called Guadalupe, and 
where it is situated ? 

A.—I do. It is this side of the Almaden. 

Q. 32.—Is there a stream near the Guadalupe Mine, and 
what is the name of it ? 

A.—There is a little dry creek that runs down from the 
mountains, but I don’t know that it had any name. 

Q. 33.—The ridge which lies between the New Almaden 
and the Guadalupe, and in which they are both situated, was 
not that called La Cuchilla del Aguaje, in old times? 

A.—No, sir, never—it never was. 

Q. 34.—Was there not a place in the Canada called Aguaje ? 

A. — There was a place down in the Canada which was called 
Aguaje. 

Q. 35.—Did not the Galindos have a corral ? Had not Ra¬ 
fael and Nasario Galindo a corral, situated near the source of 
that arroyo, which passes near the mine of Guadalupe ? 

A.—Rafael Galindo had a corral near the source of a little 
branch, not what I would call an arroyo, which passes near 
the mine of Guadalupe. 

Q. 36.—What do you call the ridge where the Guadalupe 
mine is situated ? 

A.—I call it the Sierra Azul. 

Q. 37.—Did not that arroyo, which you have said is now 
called the Alamitos, once go by the name of Arroyo of Ma- 
cario ? 

A.—I never heard it called the Arroyo of Macario. I have 
always heard it called the Arroyo de los Capitancillos. 

Q. 38.—Did not Macario have a vineyard among the lomas 
near the margin of the Arroyo of Macario ? 

A.—I have never seen it or heard of it. 

Q. 39.—What is the reason that you have taken these last 
eleven days to get ready to testify in this case? why could you 
not come up and testify as soon as you got here ? 

A.—’Because there has been business in the offices. I wanted 
to return the very day I came. I have been in attendance every 
day. 

Direct, Resumed. 

Q. 40.—Who was Macario, or Macario Castro, of whom you 

10 


146 


have spoken, and when did lie first go into the neighborhood 
of the Pueblo of San Josd? 

A.—In the years 1798 or 1799, and up to 1801. He was a 
Commissioner of the Pueblo of San Jose. 

Cross-Examination, Eesumed. 

Q. 41.—Have you at any time ever lived in the Canada 
de los Capitancillos ? 

A.—I have never lived there, but I had cattle there. My 
father also had cattle there. 

Q. 42.—How long since you ceased to have cattle there, and 
moved from the neighborhood? 

A.—I ceased to have cattle there since the year 1825. I 
moved away from the Pueblo in 1818. I enlisted in the army. 

his 

JOSE MARIA [X] AMADOR, 

mark. 

Sworn to and subscribed, August 26th, 1858, before me. 

W. II. CHEVERS, 

U. S. Comm’r. 

(Indorsed.) Filed August 26th, 1858. 

W. H. Chevers, Clerk. 

I, W. H. Chevers, Clerk of the District Court of the United 
States for the Northern District of California, do hereby certify 
the foregoing to be a full, true and correct copy of the original, 
now on file and remaining of record in my office. 

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court, this 28th day of August, A. D., 
1858. 

[l. s.] W. H. Chevers, Clerk. 


United States District Court, ) 
Northern District of California.) 

The United States ) 
vs. > 

Charles Fossatt. ) 

San Francisco, August 27, 1858. 

On this day, before W. H. Chevers, a Commissioner of the 
United States for the District of California, duly authorized to 



147 


administer oaths, etc., etc., came Jose Romero, a witness pro¬ 
duced on behalf of the United States, in case No. 132, being 
an appeal from the Board of Commissioners to ascertain and 
settle the private land claims in the State of California, in case 
No. 340 on the docket of the said Board of Commissioners, 
and was duly sworn and testified as follows—his evidence be¬ 
ing interpreted by Richard Tobin, a sworn interpreter: 

Present: the U. S. District Attorney and Mr. Peachy, for 
the United States; and Mr. Crittenden for claimant. 

Question by United States District Attorney. 

Question 1.—What is your name, age and place of residence? 

Answer. —Jose Romero; am 58 years of age, and reside in 
Alameda County, Cal. 

Q. 2.—Do you know the Rancho de los Capitancillos and the 
adjoining country, and how long have you known it? 

A.—I do. I have known them ever since I had the use of 
reason. 

Q. 3.—By whom was it occupied when you first knew it ? 

A.—By Leandro Galindo. 

Q. 4.—Where did Leandro Galindo live at that time? 

A.—He lived in front of the point of the hill called Cu- 
chilla de Santa Teresa, near the road; about fifty varas from 
the Arroyo de los Capitancillos. 

Q. 5.—Do you know the arroyo now called Arroyo de los 
Alamitos? If you do, please state by what name that arroyo 
was formerly known ? 

A.—I do. It was formerly known by the name of Arroyo 
de los Capitancillos. 

Q. 6,—Were you much upon the land at any time during its 
occupation by Leandro Galindo ? 

A.—I was four years upon it. I had a house there, and 
lived there four years in company with Leandro Galindo. I 
assisted him to take care of his cattle. This was in the years 
1832, 1833, 1834 and 1835. 

Q. 7. _Do you know of any place in that neighborhood that 

was called by the name of Sierra del Encino ? 

A.—No, sir. 

Q. 8.—Do you know any place or object in that neighbor¬ 
hood which was called El Encino ? 

A.—I do. 

Q. 9.—Please describe it. 

A._It is a large tree called El Encino Coposo de la Sierra 

Azul. It is near the source of a small branch or creek which 
runs down the mountain, and passes near the Guadalupe mine. 


148 

i r i 

The small creek (Arrojito) has lately been christened the 
corral of the deceased Rafael. I mean that they call the 
Canada through which it runs by this name, because Rafael 
had a corral in it near the source of this creek. 

Q. 10.—What is the name of the arroyo ?—not the Arroyito 
which passes by the Guadalupe mine. 

A.—It is the same that I have been describing. The main 
arroyo—the large arroyo—is called the Arroyo de los Capi- 
tancillos. The Arroyo Seco is an arroyo which joins the Ar¬ 
royo de los Capitancillos. 

Q. 11.—Do you know a place in that neighborhood called 
La Cuchilla de la Mina de Luis Chabolla ? 

A.—No, sir. 

Q. 12.—Do you know a place called Santa Teresa, and if so, 
where is it ? 

A.—I do. It is on the left hand side as you go to the Al- 
maden mine. 

Q. 13.—Have you ever been to the place which you have 
called the Encino Coposo ? 

A.—Yes, sir. 

Q. 14.—Do you know the old mouth of the Almaden mine, 
and if you do, what is the name of the mountain in which it 
is situated ? 

A*'—Yes, sir; the name of the mountain is La Sierra Azul. 

Cross-Examination. 

Q. 15.—How long have you been in town ? 

A.—Twelve days to-day. 

Q. 16.—Where have you been staying in the city during 
that time ? 

A.—In the California Hotel. 

Q. 17.—Who pays your expenses there? 

A.—Mr. Campbell. 

Q. 18.'—What Mr. Campbell? 

A.—I don’t know what Mr. Campbell it is. It is the same 
Mr. Campbell who was here yesterday. A lawyer, or I don’t 
know what. 

Q. 19.—Is he not a son-in-law of Antonio Maria Pico ? 

A.—He is. 

Q. 20.—Has Mr. Campbell, or any one else, furnished you 
with any money since you have been in town ? 

A.—Mr. Campbell has given me some. He has paid my 
expenses. 

Q. 21.—How much did he give you? 

A.—Enough to pay my daily expenses. 

Q. 22.—How much are your daily expenses? 



149 


't * • # * 

A.—About $1 50 or $2 00. 

Q. 23.-—-Has Mr. Campbell given you only $1 50 or $2 00 
per day since you have been here ? 

A.—He has given me more. 

Q. 24.—How much more? 

A.—He gives me some every day; enough to pay for my 
board and lodging, and my expenses. 

Q. 25.—How much are you to get to compensate you for the 
time you have lost here, and for your trouble in coming here 
to testify ? 

A.—I don’t suppose I will get anything. I have had no 
agreement to get anything. I was sent for, and I came. 

Q. 26.—Who sent for you? 

A.—Mr. Campbell. 

Q. 27.—Where were you when you were sent for? 

A.—At my house. 

Q. 28.—Who came for you ? 

A.'—Antonio Maria Pico. 

Q. 29.—What did he tell you he wanted with you ? 

A.—He did not tell me what he wanted with me. He only 
told me Mr. Campbell wanted me. 

Q. 30.'—Did he tell you nothing about this rancho of Capi- 
tancillos, or the Almaden mine ? 

A.—No, sir. 

Q. 31.—Did you not know before you came to town that 
you were wanted as a witness to testify something about this 
rancho or the mine? 

A.-—I did not know it until I reached here. 

Q. 32.—Who told you so when you reached here ? 

A.—Campbell. 

Q. 33,—State all the conversation between you about the 
matter. 

A.—All the conversation was, that he asked me if I knew 
the Canada de los Capitancillos, El Encino, La Sierra Azul, 
and the mine. I told him I did, and that I also knew the 
corral of the deceased Rafael. 

Q. 34.—Had you not talked about the matter before, with 
Campbell or Pico ? 

A.—No, sir; I knew nothing about it before I came here. 

Q. 35.—Has no one talked with you about these matters 
within the last year, before you came here ? 

A.—No, sir. I very seldom leave my home; seldom ever 
go to the Mission. When he called upon me, he said I would 
not have to remain here more than a day or two. 

Q. 36.—Has not Mr. Campbell been with you a part of 
every day since you have been in town ? 


150 


A.—No, sir. When I have seen him he merely called, and 
handed me what was necessary to pa} r my expenses. 

Q. 37.—Have you not seen him every day since you have 
been here ? 

A.—I have seen him every day, or every second day. 

Q. 38.—Who came with you to this building yesterday ? 

A.—Amador and myself. 

Q. 39.—Was any paper served on you, requiring you to ap¬ 
pear here as a witness ? 

A.—No, sir. 

Q. 40.—How far do you live from the Mission of San J os6 ? 

A.—About a mile. 

Q. 41.—What is your occupation? 

A.—That of a farmer. 

Q. 42.—Are you rich ? 

A.—No, sir; if I were rich, I would not work. 

Q. 43.—Can you afford to lose twelve days without being 
compensated for it ? 

A.—I suppose I will have to lose the time now. I don’t 
suppose I will be paid for it. 

Q. 44.—Were you not present yesterday when Jos6 Maria 
Amador was examined ? 

A.—I was present at first; afterwards kept out. 

Q. 45.—How long have you lived in the place you now 
reside ? 

A.—Two years. 

Q. 46.—Do you own the land on which you now reside ? 

A.—No; it belongs to a son-in law of mine. 

Q. 47.—Do you own any lands in California ? 

A.—No, sir. 

Q. 48.—Do you own any property ? 

A.—No, sir. 

Q. 49.—How long has it been since you have lived in what 
is now Santa Clara county ? 

A.—I have not lived in Santa Clara county since 1848. 

Q. 50.—Where did you first live when you left this rancho, 
in 1835? 

A.—I went to the pueblo of San Jos6. 

Q. 51.—How long did you stay there? 

A.—One year. 

Q. 52.—Where did you then go to live? 

A.—I went to the Positos Livermore’s. 

Q. 53.—How long did you live there, and where did you 
then remove to? 

A.—Two years, and then moved to the Mission of San Jos6. 

Q. 54.—Have you resided in the vicinity of this rancho at 
any time since 1835 ? 


151 


A.—I have not. 

Q. 55.—Did you ever hear of the Mine of Luis Chabolla ? 

A.—Yes, sir. 

Q. 56.—What did you say was the name of that arroyo 
which passes near the Guadalupe mine, between the mine and 
the sierra? 

A.—El Arroyito del Corral del Difunto Rafael. 

Q. 57.—Do you know where the Guadalupe mine is ? 

A.—I know the loma hill in which it is, but don’t know in 
what part. I know the sierra in which it is, but don’t know 
in what part it is. Loma and sierra mean the same thing with 
us. 

Q. 58.—Is not the Guadalupe mine situated in the same 
ridge of hills in which the Almaden mine is situated? 

A.—It is in the same ridge. 

Q. 59.—Have you ever been to the Almaden mine ? 

A.—Yes, sir. 


Direct Examination, Resumed. 

Q. 60.—Did you and Jose Maria Amador, who testified yes¬ 
terday, have, before your examination, an interview with the 
U. S. District Attorney, in which he inquired of you as to 
your information upon the points to which he has examined 
you upon this deposition? 

A.—No, sir; I don’t know that it was in a room in this 
house. Don’t remember where it was. I remember having 
seen the District Attorney in a room. 


his 


JOSE [X] ROMERO. 

mark. 


Sworn to and subscribed August 27, 1858, before me. 

W. H. CHEYERS, 

U. S. Comm’r. 

(Indorsed.) Filed August 27th, 1858. 

W. H. Chevers, Clerk. 


I, W. H. Chevers, Clerk of the District Court of the 
United States for the Northern District of California, do 
hereby certify the foregoing to be a full, true, and correct copy 
of the original, now on file, and remaining of record in my 
office. 

In testimony whereof, I have hereunto set my hand, and 
affixed the seal of said Court, this 28th day of August, A. D., 
1858. 

[L. S.] 


W. H. Chevers, Clerk. 


152 


United States District Court, ) 
Northern District of California, j 

The United States) 

vs. > No. 132. 

Charles Fossatt. ) 

San Francisco, Sept. 2, 1858. 

Sir: You are hereby notified that I will examine Henry 
C. Malone, Leslie C. Bostick and Isaac Branham, in the above 
case, on the part of the United States, at 12 o’clock, noon, to¬ 
morrow, the 3d Sept, inst., before W. H. Chevers, Esq., U. S. 
Comm’r, at his office. 

Yours, etc., 

P. DELLA TORRE, 

U. S. Attorney. 

A. P. Crittenden, Esq., Att’y for Fossat. 


(Indorsed.) Received copy within, this 2d September, 1858, 
J to 5 P. M. Will not attend on such short notice. 

A. P. CRITTENDEN, 

Att’y for Fossat. 


United States District Court, / 
Northern District of California. ) 

The United States ) 
vs. > 

Charles Fossatt. ) 

San Francisco, Sept. 3, 1858—8 o’clock, P. M. 

On this day, before W. II. Chevers, a Commissioner of the 
United States for the districts of California, duly authorized to 
administer oaths, etc., etc., came Isaac Branham, a witness pro¬ 
duced on behalf of the United States, in case No. 132, being 
an appeal from the Board of Commissioners to ascertain and 
settle the private land claims in the State of California, in case 
No. 340 on the docket of the said Board of Commissioners, 
and was duly sworn, and testified as follows: 

Witness sworn on voir dire. 

Present: the U. S. Attorney and Mr. Peachy, for the United 
States; and Mr. Crittenden, for claimant. 



153 


Question by Claimant’s Counsel. 

Question 1.—Have yon any interest in the event of this suit? 

Answer .—I don’t know that I have. 

Q. 2.—Have you not a claim, or some interest in a claim, to 
the land claimed by Charles Fossat in this case, or to some part 
of it? 

A.—Not that I think would be affected by this suit. 

[Answer objected to as not responsive to the question, and 
the question is repeated.] 

A.—I have a claim in the pueblo lands, which claim I con¬ 
sider covers a portion of the Fossat claim. 

Q. 8.—You are interested, are you not, in the claim pre¬ 
sented in the name of the City of San Jose, and which was 
confirmed by the U. S. District Court for the Northern District 
of California, and the confirmation of which has been set aside, 
and the claim is now pending in this Court? 

A.—I am interested in that claim. I know nothing about 
the claim being set aside. 

Q. 4.—Is not the land claimed by Charles Fossat in this 
case, or the greater part of it, included within the boundaries 
described in the decree confirming the claim of the City of San 
Jose ? 

A.—Yes, sir. 

Q. 5.—What interest have you in the claim of the City of 
San Jose? state its proportion and nature. 

A.—I own one-eleventh and one-half of one-eleventh of the 
city interest, after paying all the indebtedness that the said 
property was sold for, after paying the expense. 

The U. S. Commissioner adjourned the deposition until to¬ 
morrow at 12 M. 

ISAAC BRANHAM. 

Sworn to and subscribed Sept. 3d, 1858, before me. 

W. H. CHEVERS, 

U. S. Com’r. 


San Francisco, Sept. 4, 1858—1 P. M. 

Cross-Examined on Yoir dire. 

Question .—When did you acquire your interest in the pueblo 
claim ? 

Answer .—Somewhere in the neighborhood of 1850 or 1851. 




154 


[The witness is objected to on the part of the claimants as 
incompetent, on account of interest in the subject matter in 
dispute.] 

Isaac Branham being duly sworn in chief deposes and says: 

I am the Isaac Branham who was examined in this case on 
or about the 15th of April, 1857. On that occasion, in my an¬ 
swer to the ninth cross-interrogatory, I answered with regard 
to the ridge in which the San Antonio, New Almaden and 
Guadalupe mines are situated as follows : 

“Answer 9.—It is a ridge of low hills separated from the 
main mountains by the Creek Capitancillos and a low depres¬ 
sion in the ridge, or a small valley—quite a small valley.” 

I now desire to correct that statement in the following 
manner: 

After giving my testimony as above, I had occasion to go 
over the ground, and then I made a particular examination of 
it. At the time I then testified, I did not expect to be exam¬ 
ined upon that point of the case, as I was summoned only for 
the purpose of speaking as to the reputation of Mr. Forbes, but 
in answer to the question put, I gave what was then my opin¬ 
ion. On my return to Santa Clara, I was out on a hunt over 
the neighborhood of the mine, and being there, it brought to 
mind what I had said upon my examination, and caused me to 
examine it more particularly. I then, on the spot, became 
satisfied that the ridge in which the mines are situated is a 
spur of the sierra, and the New Almaden mine is in a high 
peak of that spur. I have frequently since then been on the 
ground, and remain of the opinion last expressed. I have no 
doubt in my mind that the mining ridge is a portion of the 
Blue mountain. 

I would consider the head waters of the stream which passes 
by the Guadalupe mine to be high up in the mountains; in the 
neighborhood of the highest peak, which is termed Umunhum. 

I think, when I saw Mr. Laurencel, after my examination of 
the land, I stated to him I had been mistaken in my impres¬ 
sion and description of the place, and in stating that there was 
a valley between the mining ridge and the Sierra Azul. 

Cross-Examined. 

Q.—Before you gave your deposition in this case, in April, 
1857, had you not often been upon the ground, hunting, or for 
other purposes ? 

A.—Not on that part of the ground in which the ridge is; 
that part of the ground in which the depression is, which I 



155 


mentioned before as separating the mining ridge from the 
main sierra. 

Q.—Were you, on your former examination, also mistaken 
when you said that the creek which separated the mine ridge 
from the main mountain was called the Capitancillos, and that 
in fact the mine ridge and the main mountain were so separ¬ 
ated by that creek, which flowed between them and came out 
on the plain after passing the Guadalupe mine? 

A.—I don’t recollect saying that the Capitancillos divided 
the main ridge and the mine ; if I said so, I was misunderstood. 
I mean to say that the Capitancillos creek would have to be 
crossed in going from the mine to the main mountain in a 
southwest direction. 

Q.—By going in about rather a southeast direction from the 
mine to the mam mountain, you would also cross the Alamitos 
creek, would you not? 

A.—By making the course southerly enough you would. 

Q.—Then I understand you that there is a divide which 
separates the head waters of the two creeks—the Capitancillos 
and the Alamitos—one flowing one way and one the other, 
and that this divide comes down from the main mountain and 
joins with the ridge in which the Almaden mine, the San An¬ 
tonio mine, and the Guadalupe mine are situated? 

A.—It is a continuous divide until it passes the Almaden 
mine. 

Q.—Starting from the Guadalupe mine, or San Antonio 
mine, and going to the large Encino, on the spur of the Sierra 
Azul, what stream would you cross ? 

A.—The Capitancillos. 

Q.—How far is it, about, from the point of the mine ridge 
■where the Capitancillos comes around by the Guadalupe mines 
to the point of the same ridge where the Alamitos creek comes 
out on the plains ? 

A.—About four miles. 

Q.—Then that ridge of about four miles in length, in which 
the Almaden, San Antonio and Guadalupe mines are all situ¬ 
ated, is only connected with the main sierra at one point by 
the divide which you have described. Is it not so ? 

A.—It is more than likely that the length of the ridge is 
more than four miles. It is connected in the manner indicated 
by the question, and I consider that the whole ridge is only 
connected with the main mountain by the little divide which 
runs up to the main ridge. 

Q.—Everywhere else then, except the divide, the main ridge 
is separated from the main mountain by the depression through 
which the two creeks—Alamitos and Capitancillos—take their 
course. 


156 


A.—It does. 

Q.—Is not the divide which joins the main sierra to the 
mining ridge somewhat lower than either of those ridges? 

A.—I do not recollect. It is higher up than I go when 
hunting. 

Q.—Is the creek which passes by the Guadalupe and San 
Antonio mines, and which you call the Capitancillos, a small 
dry creek from its source to the bend, or is there water in it 
all the year round from its source to the bend ? 

A.—So far as I have been up the stream there has been wa¬ 
ter running, except last year, which was very dry, and then 
there was water in the holes. 

Q.—Are not the hills composing what is called the mine 
ridge, generally very good grazing ground, covered by a fine 
growth of wild oats, and affording very good pasturage for 
cattle ? 

A.—I think the bigger half is. 

Q.—And is not the land of the plain, about where the house 
of Justo Larios stood, and which was afterwards occupied by 
Grove C. Cook, very dry, gravelly, poor land for pasture, much 
inferior to the grazing along the mine ridge ? Does not the 
grass in that quarter perish very soon in the spring and become 
unfit for the maintenance of cattle ? 

A.—Immediately at the house, and running back along a 
bench in a south-west direction, it is of the nature mentioned 
in the question. 

Q.—Is not the very best pasture on the whole rancho to be 
had in the mine ridge, near the San Antonio mine ? 

A.—I think not. 

Q.—Does not the Capitancillos creek make a break in the 
mine ridge? and does not the land rise again on the other side 
and form another ridge, which continues through the rancho of 
Augustin Narvaez? 

A.—Immediately after the Capitancillos creek passes round 
the mine ridge near the Guadalupe mine, the land rises again 
and forms another ridge, some two or three miles in extent, to 
the westward. 

Q.—This last ridge which you speak of lying on the western 
side of the Capitancillos, how is that separate from the blue 
mountain? 

A.—From the bend of the Capitancillos westward you can 
drive up the hollow with a buggy until you get to a place 
where the waters flow both ways, easterly and westerly. 

Q.—Have you not been in the habit of calling and hearing 
other people call the ridge in which the mines are situated by 
the names of the low hills or foot hills, or mine ridge, or lomas, 
or lomas bajas, or other such names ? 


157 


A.—I have been in the babit of calling the ridge the mine 
ridge, and if anybody asked me where the mine was situated, 
would say in the low bills or foot bills forming a part or spur 
of the blue mountains. 

Q.—Who asked you to come here, and who pays your ex¬ 
penses ? 

A.—I received a subpena, and suppose the Government pays 
my expenses as a witness. No one spoke to me about coming; 
the first I knew of it was when I was served with a subpena. 

Q.—The mine ridge, you say, you regard as a spur: what 
do you consider to be the main sierra ? 

A.—The top of the blue mountain I would call the main 
ridge. The great Encino is high up on the slope of the main 
mountain. 

Direct, Resumed. 

Q. 1.—Is there any good grazing land in the valley which 
lies at the foot of the mountains in which the mine is situated ? 

A.—There is some good grazing land ; a portion of it is not. 

ISAAC BRANHAM. 


Sworn to and subscribed before 
ber, 1858. 


me, this 4th day of Septern- 

W. H. CHEVERS, 

U. S. Commissioner. 


(Indorsed.)—Filed September 4th, 1858. 

W. H. Chevers, Clerk. 


United States District Court, ) 
Northern District of California, j 

The United States! 

vs. > 

Charles Fossatt. ) 

San Francisco, Sept. 4th, 1858. 

On this day, before W. H. Chevers, a Commissioner of the 
United States for the Districts of California, duly authorized 
to administer oaths, etc., etc., came H. C. Melone, a witness 
produced on behalf of the United States in case No. 132, be¬ 
ing an appeal from the Board of Commissioners to ascertain 
and settle the private land claims in the State of California, in 



158 


case No. 340 on the docket of said Board of Commissioners, 
and was duly sworn, and testified as follows: 

Present: the U. S. District Attorney; and A. P. Critten¬ 
den, by Ed. Randolph, for the claimant. 

Witness sworn on his voir dire. 

Question by Claimant. 

Q.—Have you any interest in the claim for the pueblo lands 
of San Jose ? 

A.—1 have ; I own one-eleventh, after paying the city debt, 
the expeDses of the suit, and deducting one-fourth for the city’s 
interest. I acquired my interest in the year 1851. 

[Witness objected to, on account of interest, as incompetent, 
by claimant’s counsel.] 

Henry C. Melone, being duly sworn, in chief, deposes and 
says: 

I am the same Henry C. Melone who was examined in this 
case on or about the 14th of April, 1857. Since my deposition 
I have made a particular examination of the ground, and find 
that the mining ridge is a spur of the Blue Mountain; the 
ridge being continuous, with variations of hight, and separat¬ 
ing the waters of two streams which run in different directions 
from that point, one passing by the Guadalupe Mine, and the 
other by the New Almaden Hacienda, but coming together in 
the plain. I should judge that the lowest depression in the 
ridge running into the back ridge must be about the same 
hight as the present mouth of the New Almaden mine. 

Cross-Examination. 

Q.—Give a fuller description of the mining ridge;—say 
how far it is from the bend of the Capitancillos to the bend 
of the Alamitos;—say whether this ridge is not connected 
with the main sierra only at one point, viz: the divide; and 
whether on each side of that divide it is not separated from 
the main sierra by the Capitancillos and Alamitos creeks, res¬ 
pectively, and the depressions through which those creeks flow. 

A.—The mine ridge from the point of the hill at the 
Guadalupe mines to the Almaden mines, is seven miles ; in my 
opinion, where it strikes one branch of the Alamitos Creek, it 
is connected only at one point, viz: at the divide where it sep¬ 
arates the waters of the Capitancillos and Alamitos creeks. 
The Capitancillos separates the mining ridge from the main 
sierra a portion of the way. The Alamitos does not separate 


159 


the sierra from the mine ridge, as it does not run parallel with 
the sierra, but goes down into the plain. 

Q.—How have you been in the habit of designating the 
range on which the mines are situated, and how have others 
been in the habit of designating it ? Are they not generally 
designated as the low hills, foot hills, lomas, lomas bajas, etc.? 

A.—I have generally designated it as the mine hills, and it 
has been so by the Americans generally, as far as my hearing 
has extended. 

Q.—If you are asked where the mine is situated, would you 
not answer, as you have just heard Mr. Branham say he would, 
that it was in the low hills, or foot hills of the Blue Mountains? 

[Objected to, as the witness must answer from his own 
knowledge, and not as Mr. Branham says.] 

A.—I should say that it was in the range of low hills run¬ 
ning out from the Blue Mountains. 

Q.—If you were asked what the sierra was, how would you 
answer ? 

A.—I should say the ridge on which the live oak is situated, 
from the mine ridge where the waters separate up to the top of 
the range, is one continuation of the mountain. 


Direct, Resumed. 

Q.—Where do you consider the foot of the sierra ? 

A.—At the foot of the mine ridge. 

H. C. MELONE. 


Sworn to and subscribed before me, this 4th September, A. 
D. 1858. 


W. H. CIIEYERS, 

U. S. Commissioner. 


(Indorsed.) Filed September 4th, 1858. 

W. II. Chevers, Clerk. 


Leslie C. Bostick being duly sworn on the part of the Uni¬ 
ted States, deposes: 

That he is a resident of San Josd, where he has resided since 
February, 1850 ; that he is familiar with the neighborhood of 
the land claimed in this case, having very frequently walked, 
rode and hunted over it; he knows the situation of the New 
Almaden and Guadalupe mines; the New Almaden mine is 
situated in a spur of the Blue Mountain, a portion of the 



160 


mountain itself. You can ride from the mine continuously 
along the ridge, nearly if not quite to the top of Mount Um- 
unhum, without descending any valley, as the ridge is contin¬ 
uous but zigzags along. 

L. C. BOSTICK. 

[No cross-examination.] 


Sworn to and subscribed before me, this 4th day of Septem¬ 
ber, A. D. 1858. 

W. H. CHEVERS, 

U. S. Commissioner. 


(Indorsed.) Filed September 4th, 1858. 

W. H. Chevers, Clerk. 

I, W. FT. Chevers, Clerk of the District Court of the United 
States, for the Northern District of California, do hereby cer¬ 
tify the writings annexed to this certificate to be full, true 
and correct copies of their respective originals, now on file, 
and remaining of record in my office. 

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court, this 6th day of September, A. D. 
1858. 

[l. s.] 


W. H. Chevers, Clerk. 


161 


United States District Court, ) 
Northern District of California. ) 

The United States, ) 

VS. V 

Charles Fossatt. ) 

San Francisco, Sept. 7, 1858. 

On this day, before W. H. Chevers, a Commissioner of the 
United States, for the District of California, duly authorized to 
administer oaths, etc., etc., came A. W. Von Schmidt, a witness 
produced on behalf of the United States, in case No. 132, 
being an appeal from the Board of Commissioners to ascertain 
and settle the private land claims in the State of California in 
case No. 340 on the docket of the said Board of Commis¬ 
sioners, and was duly sworn, and testified as follows: 

Present P. Della Torre, Esq., for the United States, and 
A. P. Crittenden for claimant. 

Questions by U. S. District Attorney. 

Question. 1.—What is your name, residence and occupation? 

Answer. —A. W. Von Schmidt; San Francisco; civil engi¬ 
neer and surveyor ; hge 35. 

Q. 2.—Has your business made you familiar with the loca¬ 
tion and survey of ranchos under Spanish grants ? 

A.—Yes, sir. I have been in the employ of the U. S. Sur¬ 
veyor-General in the capacity of deputy surveyor, during which 
time I have made a large number of surveys of Spanish grants. 

Q. 3.—Have you ever examined the land claimed in this 
case; and when ? 

A.—I have made an examination within the last week. 

Q. 4.—Did you visit the ridge in which the New Almaden 
Mine is situated ? 

A.—Yes, sir. 

Q. 5.—Is, or is not that ridge a portion of the sierra? and 
state your reasons for whatever opinion you may express. 

A.—I consider it a portion of the sierra, for the reason 
that it is connected by a continuous spur making down from 
the mountain marked on the map, “ Umunhum,” w r hich spur 
forms the divide between the creeks Arroyo Seco and Arroyo 
Alamitos. The hight I found in the lowest place in that 
ridge connecting across, is one thousand three hundred and fif¬ 
teen feet above the level of the sea, by observation made by 
the barometer. From Mine Hill, as marked on the map, the 
different spurs of the mountains continue to descend until they 

11 


162 


reach the plain in broken spurs. These are my reasons for 
considering it a portion of the main range of mountains. 

Q. 6.—Look upon the map marked “ Exhibit A. P. C.,” and 
point out what you consider the base of the sierra. 

[Question objected to.] 

A.—I consider the base of the sierra near the red line drawn 
at the foot of said hills, or sierra, as represented on said map, 
at which point it joins with the plain. 

Q. 7.—AVhat papers had you with you when you made your 
examination? 

A.—I had a copy of “ Exhibit A. P. C.,” or Lewis’ map, 
which I compared with the original and found to be correct; a 
printed copy of the transcript in this case used by the Supreme 
Court of the United States at its last term; a printed copy of 
the claimant’s brief in the Supreme Court, in this case, con¬ 
taining two disenos, one of the rancho of Justo Larios, and 
the other of the rancho of Berreyesa, and a printed copy of 
some of the testimonj T in this case. 

Q. 8.—Did you find that the diseho in the Justo Larios case 
gives a correct idea of the land as it exists in nature ? 

A.—Yes, I found that the arroyos, as laid down on the dis¬ 
eno, and the point where it entered the foot hills, gives a very 
good idea of the country as it actually exists ; also the range of 
hills as laid down and marked “Sierrctdel Encino,” all of 
which is in keeping with the sketch or diseho. 

Q. 9.—Did you find the Berrej^esa diseno correct ? 

A.—I did not, for the reason that there is no valley as laid 
down on that diseno, actually existing, at the foot of Sierra 
Azul, marked on that diseno; further, the creek Arroj r o de 
los Alamitos, as represented on this diseho, is wrong in its 
course and direction ; that is, that portion from the western 
portion to where it passes between the two mountains or hills, 
as represented on the diseno, said creek comes in from the 
south, instead of the west. 

Q. 10.—At what point, as shown on “ Exhibit A. P. C.,” do 
the two water courses laid down on the Justo Larios diseho, as 
the Arroyo de los Capitancillos and the Arroyo Seco, respect¬ 
ively leave the mountains and enter upon the Canada? 

A. — The Arroyo Seco leaves the mountains at a point 
marked on said map at or near Station 44. The Arroyo de los 
Capitancillos, called the Arroyo de los Alamitos at that point, 
leaves the mountain range a short distance above the house of 
Mr. Walkinshaw, probably a quarter of a mile. 

. Q. 11.—Does, or does not the diseho of Justo Larios suffi¬ 
ciently explain itself to enable a location from natural objects 
represented thereon? 


163 


A.—Yes; I do not consider that there would be any difficulty 
in making the location according to the diseno. 

Q. 12.—Where would you locate on “ Exhibit A. P. C.,” the 
southern boundary of the Justo Larios Rancho ? 

A. I would locate it at the eastern foot of the sierra where 
it joins the plain, about or near the red line on said map. 

Q. 13.—On the same Exhibit, which would you call the head 
waters of the Arroyo Seco and the Arroyo de los Alamitos, 
respectively ? 

A.—I would call the head waters of the Arroyo Seco west 
of the mountain represented on said map as Uinunhum, near 
which point it has its source in the main range. That of the 
Arroyo de los Alamitos heads to the southwest of Mount 
Bache, as represented on said map. 

Q. 14.—Look at Exhibit marked “ W. H. C., No. 1.,” an¬ 
nexed to deposition of John D. Hoffman, being a sketch of the 
land claimed in this case, and some of the adjacent country, 
and particularly observe an oak tree shown prominently on one 
of the ridges, and state whether or not you consider its appa¬ 
rent size in the picture in keeping and proportion with the rest 
of the sketch. 

A.—I consider it altogether too large in proportion, accord¬ 
ing to the rules of perspective and its actual appearance on the 
ground; further, the double peak to the right of the tree is al¬ 
together too low to what the appearance would be on the 
ground, and the ridge which the tree stands on is too high. 

Cross-Examination. 

Q. 1.—Have you any other reasons than those stated in your 
answer to question five, for saying that the ridge in which the 
New Almaden Mine is situated, is a portion of the sierra? 

A.—I can state several other reasons; from my experience 
in having surveyed in mountainous portions of the State, which 
are the continuous high peaks, spurs and deep ravines, and the 
general appearance of the country, broken and gradually fall¬ 
ing towards the plain, which is the case in all mountains where 
they descend from the main ridge into the plains, and the gen¬ 
eral appearance of the topography of the country. 

Q. 2.—In what sense do you mean that this ridge is a part 
of the sierra ? 

A.—By being connected with the ridge which I formerly 
stated, connecting that portion of Mine Hill with the mountain 
Umunhum, by following which ridge that point Umunhum 
could be reached without descending lower than the point 
marked on the map 1,349 feet, but which I found by the baro¬ 
meter to be 1,315 feet. 


164 


Q. 3.'—That connecting ridge is narrow, is it not, compared 
with the whole length of the mine ridge ? 

A.—Yes. 

Q. 4.—And except where that connection exists the mine 
ridge is separated, is it not, by ravines and streams from the 
main sierra ? 

A.—Yes. 

Q. 5.—If that connection did not exist, would you still be of 
the opinion that the ridge was a part of the sierra for the 
other reasons you have given ? 

A.—I would, for the reason that I have frequently found 
far back in the Sierra Nevada Mountains, mountains rising 
isolated by themselves, not being connected even with a ridge 
to the main sierra. 

Q. 6.—Do you mean to say that in such cases you would re¬ 
gard such isolated mountains as parts of the Sierra Nevada, in 
the same sense in which this mine ridge is a part of the sierra? 

A.—I would where the mountains are adjacent, as it is in 
this case, being a portion or a part of the main mountain. All 
mountains must have some place which we should designate as 
the foot of the mountain. 

Q. 7.—For the same reason would you consider all foot hills 
connected with, or lying near, the main range as a part of the 
range ? 

A.—I would, if connected with the main range, or lying 
adjacent, as previously stated. 

Q. 8.—AVhat is the elevation of the plain of the Rancho los 
Capitancillos above the sea ? 

A.—I do not know. I did not take that observation. 

Q. 9.—Why do you consider the red line drawn at the foot 
of the mine ridge, on map “A. P. C.,” as being the base, or 
near the base, of the sierra ? 

A.—For the reason that at that point, or near where that 
line is drawn on the map, the hills join with the plain. 

Q. 10.—Did you mean to express that opinion in view of 
your examination of the country, and of the papers connected 
with the grant in this case, or merely because of the opinion 
you have expressed that the mine ridge was a part of the 
sierra ? 

A.—Both. 

Q. 11.—Do you speak and read the Spanish language ? 

A.—Very imperfectly. 

Q. 12.—Have you read all the papers referred to in your an¬ 
swer to Question 7 ? 

A.—I have only read such portions as referred to the boun¬ 
daries, and the decree in the Land Commission, and the opinion 



165 


of Judge Hoffman. The other portions I merely glanced 
over. 

Q- 13.—Have you read the original grants to Justo Larios 
and Berreyesa? 

A.—I have read that portion which is referred to in the 
printed copy of the brief, and of the transcript to which I have 
referred. 

Q. 14.—Please to state now, as nearly as you can from recol¬ 
lection, the terms of that portion of the grant to Justo Larios 
which fixes his eastern boundary. 

[Question objected to, because it is not requisite that witness 
should retain in his memory the contents of any instrument 
which has been submitted to him, and because in this case he 
had copies of the papers with him on the ground which are 
now present on this examination.] 

A.—I don’t know that I can give the exact language, as my 
time for examination was short. I think it commences near 
the house of Larios, and passes at the eastern edge of the hill, 
marked on the map as “loma,” extending southward to the 
sierra. 

Q. 15.—When you go upon the ground for the purpose of 
locating a tract of land according to calls for natural objects, 
what is your first step ? 

A.—My first step would be to make an examination of the 
grant, to satisfy myself in regard to the natural objects called 
for; then proceed with the survey, taking some noted point or 
object as a starting point, if no such point or object has been 
called for as a starting point, and make the survey to conform 
with the decree, the diseno, and the instructions of the Sur¬ 
vey or-General. 

Q. 16.—In a country with which you are not acquainted, 
and when you did not know the names of the natural objects 
referred to in the instrument which described the land, how 
would you identify those objects? 

A.—By examination and reference to the papers that I 
might be provided with by the Surveyor-General. 

Q. 17.—Would it not occur to you to inquire of the people 
of the country where the natural objects were which were 
called for in the description of the land ? 

A.—It certainly would occur to me to make such inquiry, 
provided I could get such information from parties not inter¬ 
ested either in the grant or as settlers, as past experience has 
proved. 

Q. 18.—Names are arbitrary, are they not, and if a grant or 
deed were put into your hands which called for streams and 
hills by name in a country where you were wholly unac- 


166 


quaintecl with the names of natural objects, how else could you 
find what objects were intended ? what hills and streams were 
intended, except by inquiries of those who knew the name and 
localities. 

A.—In that case I suppose I would have to inquire of some 
one, and, if possible, of those not interested, if no other infor¬ 
mation was in my possession. 

Q. 19.—In locating a grant, is it not the duty of the Sur¬ 
veyor to be governed by the intention of the grantor as ex¬ 
pressed in the grant ? and is not the location of the land the 
mere identification on the ground of the objects called for in 
the grant and the making of the lines called for according to 
that intention ? 

A.—The surveyor is governed by the decree and not by the 
intention. The survey is for the purpose of identifying the 
land according to the decree, and not his intention. 

Q. 20.—Do you mean to say that you are not to be entirely 
governed by the intention expressed in the decree ? 

A.—If that intention is expressed in the decree, the survey 
would be made in conformity with it. 

Q. 21.—The grant to Justo Larios calls for the sierra as the 
southern boundary of the grant, does it not ? 

A.—It does. 

Q. 22.—The diseno of Justo Larios referred to in the grant 
shows on the south a range of mountains marked “ Sierra del 
Encino,” does it not? 

A.—It does. 

Q. 23.—Do you know any range of mountains in that sec¬ 
tion of country which is called “Sierra del Encino”? 

A.—Not of my. own knowledge. 

Q. 24.—When you go upon the ground for the purpose of 
identifying that sierra which is the southern boundaiy, how 
would you ascertain it ? by inquiry of the people of the coun¬ 
try, or merely by aid of your own reason, in finding out what 
should have been the sierra ? 

A.—In this case I should use my own judgment, having the 
diseno and the calls of the grant before me. 

Q. 25.—Would you make no inquiry for the sierra or the 
“ Sierra del Encino ” ? 

A.— I should not think it necessary to make the location of 
the grant. 

Q. 26.—In determining where the base of the sierra, or 
Sierra del Encino, is, you would be governed, would you not, 
by the opinion you have expressed, that the mine ridge was a 
part of the sierra, and for that reason would locate the southern 
line of the grant about where the red line is on map “ A. P. C.”? 

A.—I would. 


167 


Q- 27.—Suppose the mine ridge was a portion of the sierra, 
but it appeared from the papers that the grantor did not intend 
so to consider it, would you still locate that southern line in 
the same way, or would you be governed by the intention of 
the grantor, and not by tire fact ? 

A.—I would be governed by the fact, as called for by the 
papers in the case. 

Q. 28.—Look at the diseno of Berreyesa, and state what ob¬ 
ject on the ground this range of hills was intended to repre¬ 
sent. I mean the one above the words “ Lomas Bajas,” and 
the letter “S?” 

A.—I cannot tell, for the reason that there is no such valley 
as represented in the map beyond that range. 

Q. 29.—Do you mean to say that you have no opinion as to 
what that range was intended to represent ? 

A.—I do. There is no such place in existence on the 
ground. 

Q. 80.—Do you know where that point is on the ground, 
which is intended by the point of junction on this diseno of 
the two streams marked Arroyo de los Alamitos and Arroyo 
Seco? 

A.—I do. 

Q. 31.—Is there not on the ground a range of hills corres¬ 
ponding in position in reference to that point and to the stream 
marked Arroyo Seco with the range delineated on this diseno 
as the “Lomas bajas para la parte del plan del Pueblo ?” 

A.—I saw a range answering to the description as marked 
on said diseno. 

Q. 32.—But there is no such valley, is there, between that 
range and the Arroyo Seco, as is represented in this diseno ? 

A.—I do not know, as I did not examine that portion of the 
ranch. 

Q. 33.—Is there not on the ground opposite the junction of 
the Arroyo de los Alamitos and the Arroyo Seco, and south¬ 
ward from that junction, a hill or lomita standing alone in the 
plain ? 

A.—There is. 

Q. 34.—How, if from that point of junction of the Arroyo 
de los Alamitos and the Arroyo Seco, you draw a straight line 
in a southerly direction, passing by the eastern base of that 
hill or lomita in the plain, what range or ridge will you first 
strike ? 

A.—The foot of the sierra. 

Q. 35.—Won’t you strike first the ridge in which the Alma- 
den mine is situated, and if you prolong that line will you not 
cross that ridge and strike the Arroyo de los Alamitos ? 

A.—Yes. 



168 


Q. 36.'—Now look at tlie dotted line on the diseno of Ber- 
reyesa drawn southwardly from the junction of the Arroyo de 
los Alamitos and the Arroyo Seco, and say whether that dotted 
line does not exactly correspond with the one just spoken of, 
and whether it does not terminate at the Arroyo de los Alami¬ 
tos, or the base of the mountain on the southern bank of the 
arroyo ? 

A.—So far as the direction of the dotted line goes it is cor¬ 
rect, where it strikes that portion of the creek. 

Q. 37.—What point on the ground corresponds with the 
point on the diseno of Berre}^esa where the dotted line inter¬ 
sects the stream called the Arroyo de los Alamitos ? 

A.—Not any point that 1 know of. The whole of that por¬ 
tion is wrong. From the mouth of the creek, passing the east¬ 
ern edge of the loma, to the foot of the sierra is correct. 

Q. 38.—Does not that point of intersection of the dotted line 
on the diseno of Berreyesa with the stream called the Arroyo 
de los Alamitos, correspond with the point in Lewis’ map, 
marked Station 65 ? 

A.—Only in course; but not in distance or in any other res¬ 
pect. 

Q. 39.—What other stream is there on the ground north of 
the summit of the sierra, which could be intersected by a line 
drawn southwardly from the junction of the Arroyo Seco and 
the Arroyo de los Alamitos, passing by the eastern base of the 
low hill in the plain, except the Arroyo de los Alamitos ; and 
if there is none, must not Station 65, on Map “ A. P. C.,” of 
necessity be identical with the point of intersection on Berrey- 
esa’s diseno of the dotted line and the Arroyo de los Alamitos? 

A.—I know of no other Arroyo, nor do I know that said 
point No. 65, on Lewis’ map, is or is not the place intended to 
be intersected by the dotted line represented on the diseno. 

Q. 40.—How would you set to work on the ground to find 
the point of intersection of the dotted line on Berreyesa’s 
diseno with the stream called there Arroyo de los Alamitos? 

A.—With Berreyesa’s diseno I don’t think I could find the 
point at all. 

Q. 41.—Could you not find that point of intersection on the 
ground, if you were instructed that that dotted line was a 
straight line to be drawn from the junction of the two creeks 
southwardly, passing by the eastern base of the low hill on the 
plain, and prolonged until it struck the Arroyo de los Ala¬ 
mitos ? 

A.—In accordance with Lewis’ map, a straight line drawn 
from the junction of the two creeks southwardly far enough, 
would intersect the Alamitos at our about Station No. 65. 


169 


Q. 42.—Would that be the point represented by the junc¬ 
tion of the dotted line and the Arroyo de los Alamitos, on the 
diseno of Berreyesa? 

A*—It would not; for the reason, as I have before stated, 
that that portion of the diseno is wrong. 

Q* 43.—Please to explain why it is difficult or impossible, in 
your judgment, to find on the ground the point of intersection 
of the stream called the Arroyo de los Alamitos by straight 
line, of which you have two points fixed, viz: the junction of 
the creeks, and the eastern base of the low hill, merely for the 
reason that the topography of the country in the vicinity of 
the Arroyo de los Alamitos is incorrectly delineated, and the 
course of the stream not correctly laid down ? 

A.—I have not stated that such line could not be produced 
on the ground, but, if produced, would not be in keeping with 
the sketch, and the actual nature of the ground in fact. 

Q. 44.—On this diseno of Berreyesa, where would you locate 
the Idaciendo of the Almaden mine ? 

A.—I could not locate it at all on that diseno. 

Q. 45.—In fact, it is somewhere on the Arroyo de los Ala¬ 
mitos above its junction with the Arro }?"0 Seco, is it not? and 
in the vicinity of the first bend above that junction? 

A.—It is. Some distance above the first bend. 

Q. 46.—From your knowledge of the course of the Arroyo 
de los Alamitos, would you not say that the Hacienda of the 
Almaden mine was situated on the stream called the Arroyo 
de los Alamitos, on Berreyesa’s diseno, at a point east of and 
opposite the eastern end of the hills marked on that diseno, 
11 lomas bajas ?” 

A.—I would not. 

Q. 47.—Do you not rather think that this valley which gives 
you so much difficult}^, and which lies between the lomas bajas 
and Sierra Azul, on Berreyesa’s diseno, really represents, and 
was intended to represent, the gorge or ravine of the Arroyo 
de los Alamitos above the Hacienda of the Almaden mine, 
and that it was purposely exaggerated on that diseno, and 
made much broader than it is in nature, in order to make it 
appear with the more clearness that the western line of Berrey¬ 
esa, represented in the diseno by that dotted line, was intended 
to cross the ridge in which the Almaden mine is situated, and 
across the Arroyo Alamitos itself, and terminate at the base of 
the main sierra as the southern bank of the stream ? 

A.—I do not. 

Q. 48.—If that range of hills over the words “ lomas bajas,” 
and the letter a S,” in the diseno of Berreyesa, does not repre¬ 
sent the ridge in which the Almaden mine is situated, can you 
conceive what it was intended to represent ? 


170 


A.—I cannot. 

Q. 49.—According to your idea as to what constitutes a por¬ 
tion of the sierra, would you say that the hills marked “ Pue¬ 
blo Hills,” on the Map “A. P. C.,” were a part of the sierra, 
taking it for granted that their topography and their connec¬ 
tion with the main sierra are correctly represented on the map ? 

A.—If there was a high range of mountains, or a spur con¬ 
necting with the main sierra, I should consider them a part of 
said sierra, although the name may be changed to hills, and 
generally known by that name. 

[Answer objected to as not responsive, and question re¬ 
peated.] 

A.—Assuming the topography to be correct, I should call 
the Pueblo Hills a part of the sierra as represented on Map 
“ A. P. C.” 

Q. 50.—Their having a different name would not make 
them, in your judgment, any the less a part of the sierra, 
would it ? 

A.—It would not. 

Q. 51.—Look at the diseno of Justo Larios, and say whether 
you find that to be anything like a correct representation of 
the land granted to Justo Larios, and of natural objects on the 
land and in its vicinity ? 

A.—I consider it very accurate in its general outline, with 
the exception that the creek in Lewis’ map called Arroyo Seco, 
intersecting with that of Arroyo de los Alamitos, is not put 
down. Also, the “Lindero del S r . Berreyesa,” is not laid down 
in the same position as laid down in the diseno of Berreyesa; 
nor is the “ loma ” put down near Larios’ house. In other res¬ 
pects it is correct. 

Q. 52.—From the inaccuracy of that sketch, would you not 
suppose that it was drawn by a man who never had seen the 
land ? 

A.—This is a very difficult question to answer; for the rea¬ 
son that most of the disenos are very roughly drawn, and I 
could not form any judgment from that fact whether the party 
had ever seen the place or not. 

Q. 53.—You have said that you do not consider that there 
would be any difficulty in making the location according to 
the diseno; you mean, do you not, looking to the diseno alone, 
and assuming it to be correct, and ascertaining where the 
Sierra del Encino was from the diseno itself, and not by in¬ 
quiry, for the range bearing that name ? 

A.—I mean, in making said location, to have reference to 
the diseno so far as general guide by the natural boundaries 
as represented on said diseno, but more particularly to be 
governed by the decree in the case. 


m 


Q. 54.—The question put to you on the direct examination 
was, whether or not that diseno of Justo Larios sufficiently ex¬ 
plained itself to enable a location to be made from natural ob¬ 
jects represented thereon, and your answer was as I have just 
stated; neither the question nor answer referred to any decree. 
Why do you now refer to a decree? and the previous question 
is repeated. 

A.—My answer is, the location, taking the diseno as a guide, 
can be located without reference to any further information or 
decree on the subject. The reason I referred to the decree was 
that in making ail final surveys the surveyor is always referred 
by the Surveyor General in his instructions to the decree. 

Q. 55.—You mean that you can locate it by the diseno, tak¬ 
ing the diseno to be correct, do you not ? 

A.—I do. 

Q. 56.—Now if, when you undertook to locate the land ac¬ 
cording to the diseno, you should ascertain that the Sierra del 
Encino was the name of the portion of the main range of moun¬ 
tains to the south of the mine ridge, and not the mine ridge it¬ 
self, you would encounter difficulty, would you not ? 

[Objected to, because it supposes a state of facts contradic¬ 
tory to the diseno of which the witness is speaking.] 

A.—Not necessarily, for the reason that I should run up to 
the creek where it comes out from the mountains ; thence along 
the northern foot of the sierra until I reached the other arroyo; 
then down said arroyo to the place of beginning. 

Q. 57.—You would run up, would you not, till you got to 
the Sierra del Encino; then along the base of the Sierra del 
Encino, wherever it might be; though it might in fact be dif¬ 
ferent from what you fancy it? 

A.—I would run, as I stated above, to the foot of the sierra, 
as called for, regardless of the name of the mountain. 

Q. 58.—How would you know what sierra was intended, or 
where the foot of the sierra was, unless from the name of the 
mountain ? 

A.—I would make the examination as I have before stated, 
by reference to the diseno, and to the papers in the case; then 
make the location in conformity to my own judgment as to 
what was intended by said diseno and papers, without any 
reference to other parties. 

Q. 59.—To find the base of the sierra, you would go south 
from the Arroyo de los Capitancillos, would you not, and run 
the southern line of the grant at the base of the first hills or 
mountains, and without stopping to inquire its name or whether 
there might not be another range still farther to the south, 
which was known by the name of Sierra del Encino ? 


172 


A.—I would, for the reason that I consider the two streams 
coming from the same range of hills or mountains, and that I 
do not consider there are any two separate distinct ranges. 

Q. 60.—Suppose the southern line called for was described 
as a line running East and West through a tree known as “ El 
Encino; ” would you take the first oak you came to, or would 
you ascertain by inquiry where that oak was which was called 
*E1 Encino ? 

A.—I would first ascertain where that identical oak called 
for was, and then should run accordingly. 

Q. 61.—Why would you not do as much for a mountain as 
for a tree ? 

A.—For the reason that there are a great many oaks on 
those several ridges and that there is but one foot to the moun¬ 
tain or sierra. 

Q. 62.—That portion of the diseno of Berreyesa which lies 
West of the dotted line ought to correspond, ought it not, with 
the Eastern portion of the diseno of Justo Larios ; and if they 
be correct, the same natural objects should be delineated on 
both, ought they not ? 

A.—To make them correspond in all particulars, they should 
be the same, but in many cases the lines conflict one with the 
other and should not always be taken for granted that one has 
any right over the other until it shall have first been tested by 
the proper courts. 

Q. 63.—In order to determine the Eastern boundary of the 
Larios grant, must you not necessarily refer to the grant and 
diseno of Berreyesa ? 

A.—To that portion of the grant which conflicts with Larios 
as between the junction of the creek and the foot of the sierra, 
being the Eastern boundary of Larios. 

| [Question and answer both objected to as asking witness’ 
opinion with regard to a matter which belongs to the construc¬ 
tion of the Court.] 

64.—What conflict is there to which you refer, inasmuch 
as the grant to Larios delares that his Eastern boundary is the 
Western boundary of Berreyesa ? 

[Same objection as last.] 

A.—The conflict that I referred to was in regard to the 
disenos and not otherwise. 

Q. 65.—In your judgment and upon your knowledge of this 
case' in that conflict, which is to govern or to have the most 
weight in determining the location of that dividing line, the di- 
seho of Berreyesa or that of Justo Larios? 

[Objected to because not responsive to any thing which was 
inquired of on the direct examination, and because the diseno 


173 


of Justo Larios does not affect to lay down that line which is 
represented on the diseno of Berreyesa.] 

A.—I think the diseno of Berreyesa to the foot of the sierra. 

Q. 66.—What object is there on the diseno of Larios, which 
corresponds with the range above the words “ lomas bajas ” 
and the letter “S.” on the diseno of Berreyesa? 

A.—I don’t know. 

Q. 67.—Is Mr. John D. Hoffman an artist or a good and cor¬ 
rect draughtsman? 

A.—I believe he has that reputation. 

Q. 68.—In the question touching the correctness of the draw¬ 
ing of this Exhibit W. H. H. “No. 1,” annexed to the deposi¬ 
tion of John D. Hoffman, do you consider your own opinion any 
more reliable than that of Mr. Hoffman ? 

A.—I do, so far as regards the size of objects at long dis¬ 
tances, for the reason that Mr. Hoffman’s sight is known to be 
very bad, or otherwise known to be near sighted. He uses 
glasses in making observations which may cause the object to 
appear to him mnch larger or much smaller. I am not in the 
habit of using glasses, my eyes being excellent, and can see the 
object in its natural size. 

Q. 69.—Please explain how the use of glasses could affect 
the relative dimensions of objects. 

A.—On the same principle as using a spy glass to see any 
great distance. 

Q. 70.—If a glass magnifies one object at a given distance, 
will it not equally magnify other objects at the same distance. 
If Mr. Hoffman’s glasses magnified the tree standing on the 
mountain, did they not to the same extent magnify the moun¬ 
tain on which the tree stood ? 

A.—The principle is perfectly correct and well illustrated ; 
but the difficulty is that the tree is drawn out of proportion, not 
only in regard to the mountain, but to trees a long distance 
this side, which are represented on the ridge to be very small; 
many of which are large in size, and large groves of oaks form¬ 
ing clusters should have been represented in proper size, so as 
to be in keeping with the whole picture. 

Q. 71.—Were you ever at that tree, and do you know how 
high it is ? 

A.—I never was at that tree, nor do I know its hight, but 
what I do know is that it is drawn out of proportion as repre¬ 
sented on this picture, and in making a sketch by hand, there 
is no certainty of its being an exact copy of the section of coun¬ 
try or hights of trees or mountains which it is intended to re¬ 
present : that all sketches made by hand are more or less sub¬ 
ject to error. 


174 


Q. 72.—Is not the judgment of a person who looks at the 
picture, as much liable to error as that of the painter? 

A.—Not that of a person who is familiar with that kind of 
work, and is an artist himself, as it often happens that one 
artist will point out to the other something wrong which may 
be in the drawing or in the perspective, or in the coloring of 
the picture or painting. 

Q. 73.—Then if you had painted this picture and Mr. Hoff¬ 
man had pointed out an error in it, the probability would be 
that he would be right and you wrong, though he might have 
seen the country but once, and that casually, and not from the 
point from which the view was taken, while you might have 
made it a matter of close study and attention for some time. 
Is that so ? 

A.—I don’t think it is a comparative case, for the reason 
that I have already stated, Mr. Hoffman although a good artist 
is short sighted. 

Q. 74.—From what point of view was this sketch taken? 
please designate it on map “A. P. C.” 

A.—I think it was taken near the hill on said map near the 
Arroyo Seco, opposite to Station 28, but I do not know posi¬ 
tively, as I was not with him when the sketch was taken. 

Q. 75.—How often have you ever looked at that tree from 
that point ? 

A.—I don’t know that I have looked at that tree from that 
point at all, but on returning from the mine, after having been 
on the spur of the mountain, and knowing where to look for 
the tree, I looked at it from different places along the road, to 
compare more particularly the map made by Mr. Lewis with 
the general appearance of the country, and it struck me at the 
time that the tree as represented on this drawing is altogether 
too large, and the mountain to the right of it is not high enough, 
otherwise the picture represents the country very well. 

Q. 76.—Was it only on this occasion that you saw the tree? 

A.—This only; on that trip. 

Q. 77.—Did you see it against the hills in the background, 
or as represented in this picture ? 

A.—Both. 

Q. 78.—Do you know what is the elevation of the place 
where this tree stands, and of the hill to the right? 

A.—I do not. 

Q. 79.—Could you form no estimate of the elevation of the 
place where this tree stands? 

A.—I did not make any examination or estimate the hight 
either of the tree or the mountain to its right. 


Direct, Resumed. 

Q- 1.—May not a grant, particularly wlien accompanied by 
a diseno, give such an idea of natural objects, as to enable a 
location of the land granted without the necessity of making 
verbal inquiries of any person ? 

A.—It may. 

Q. 2.—Where the grant refers to a diseno, do you not, in 
making a location refer to the diseno as well as to the grant ? 

A.—I do. 

Q. 3.'—Does not the Justo Larios grant refer to a diseno ? 

A.—It does. 

Q. 4.—On the Berreyesa diseno, what is the relative position 
of the Lomita to the point of the arroyo and to the range 
marked Sierra Azul ? 

A.—A little less than one-half; very nearly midway be¬ 
tween these two points. 

Q. 5.—On “ Exhibit A. P. C.,” between what point and the 
angles of the creeks, is the loma laid down as midway ? 

A.—Very nearly the same as represented on the diseno of 
Berreyesa, which is about midway between the angle of the 
creeks, and what I consider the base of the sierra. 

Cross-Examination, Resumed. 

Q.—Who was with you when you made the examination of 
the country ? 

A.—Mr. Eastman, who went down for the purpose of seeing 
the country on my invitation; also, Mr. Day accompanied me 
from the mine up on the dividing ridge and back to the mine. 

Direct, Resumed. 

Q.—Have you a copy of the instructions which you received 
in this case ; if so, please append them to this deposition ? 

A.—I have, and so append them, marked J. B. W. 

[Question and answer objected to on the grounds that it re¬ 
lates to nothing drawn out on the cross-examination, and that 
the directions which may have been given to the witness by 
the District Attorney, are inadmissible as evidence, being the 
declarations of the party who oilers them in evidence made for 
the occasion.] 

Cross-Examination, Resumed. 

Q. 1.—What did you receive, and what are you to receive 
for your services in making this examination, and for your at¬ 
tendance here as a witness, and by whom has it been paid, or 
by whom is it to be paid ? 


176 


A.—I have not received a cent, nor was there any under¬ 
standing that I was to receive anything previous to my going, 
or since my return. 

Q. 2.—Do you mean to say that you have given your time 
and your professional services in this matter gratuitously, and 
at your own expense, without any promise or expectation of 
compensation or reimbursement ? 

A.—I mean to say no such thing in answering the previous 
question. I now state what I then stated, that I had no under¬ 
standing, either directly or indirectly, as to compensation for 
my services previous to my departure, or since my return; 
but do expect that all my expenses, and reasonable compen¬ 
sation, will be allowed for the time I was absent; and that is 
all I do expect. 

Q. 3.—From whom do you expect that ? 

A.—From the paymaster of this Department. 

Q. 4.—Who employed you ? 

A.—Col. Della Torre gave me that letter and requested me 
to go down and look at the country. 

Q. 5.-—Had you no conversation with him prior to the re¬ 
ceipt of this letter ? 

A.—I had. 

Q. 6.—What did he inform you he wished to do ? 

A.—He wished me to see how the country agreed with the 
disenos of Berreyesa and Larios; also to see how the survey 
of W. J. Lewis corresponded with the general topography of 
the country. He then requested me to go down immediately, 
and gave me that letter, which was all that transpired at that 
time. 

Q. 7.—Who sent for you? 

A.—I believe Col. Della Torre sent for me. 

Q. 8.—Do you know at whose suggestion. 

A.—I do not. 

Q. 9.—Were you aware, before you made this examination, 
of the positions taken on behalf of the United States in this 
case, and of the opinions which had been expressed by Wm. 
J. Lewis and Col. Ransom, or Mr. Mathieson, as witnesses in 
the case on behalf of the United States? 

A.—No; not a word. 

Q. 10.—Who furnished you with all those papers and print¬ 
ed documents referred to in answer to question seven ? 

A.—Col. Della Torre. 

Q. 11.—One of those printed pamphlets contained the depo¬ 
sitions of Lewis, Ransom, Mathieson and others, did it not ? 

A.—I recollect that of Lewis, which I saw the heading of. 

I did not read it, as I had so little time. 


177 

Q. 12.—Do you know any reason why those written instruc¬ 
tions to you should have been so carefully prepared, and why 
you were specially informed that you were to exercise your 
own judgment ? 

A.—I do not. 

Q. 13.—Did any thing occur in your conversations with the 
District Attorney which could have rendered it necessary to 
make this reference to right and justice; and was there any 
special reason within your knowledge why you should have 
been told to exercise your own judgment, totally irrespective 
of all considerations as to who may be benefited or injured 
by the result ? 

A.—Just before I was leaving, I requested Col. Della Torre 
to give me a memorandum of the examinations he wished me 
to make. He immediately wrote those few lines and handed 
the letter to me. I bid him good day and departed. 

Q. 14.—Is there anything in that letter which specifies the 
examinations you were to make ? 

A.—He states in his letter that he had given me the points 
on which he desired me to make an examination, which were 
in regard to the examination of the correctness of the disenos 
and the map of Lewis. 

Q. 15.—Have you had any conversation with parties con¬ 
nected with or in the employ of the Hew Almaden Company, 
in relation to this examination or in relation to this tract of 
land? 

A.—I told Mr. Day that I was making an examination of 
the survey of Mr. Lewis. That is all I said to him on the 
subject, as far as this case is concerned. 

A. W. VOH SCHMIDT. 

Examination closed. 

Sworn to and subscribed before me, September 7th, A. D. 

1858. W. H. Chevers, 

U. S. Commissioner. 

September 1st, 1858. 

Dear Sir: —Having informed you of the points 
Exhibit j. b. w. upon which I desire information to be used in the 
depSttoH^fA! case of the United States vs. C. Fossatt, for the 
slpt™ i 858 midt Capitancillos Ranch, I have now to request that 
you will proceed at once about the business. 

Please give it immediate dispatch. I wish you to exercise 
vour own judgment, both in observations and deductions, so 
that right and justice may be done, totally irrespective of all 

12 


178 

considerations as to who may be benefited or injured by the 
result. 

Resp’y Yours, etc. 

P. DELLA TORRE, 

U. S. Attorney. 

To A. W. Yon Schmidt, Esq., 

Deputy Surveyor, San Francisco. 

(Indorsed.) Filed September 7th, 1858. 

W. H. Cheyers, Clerk. 

I, W. II. Cheyers, Clerk of the District Court of the United 
States for the Northern District of California, do hereby certify 
the foregoing to be a full, true and correct copy of the original, 
now on file, and remaining of record in my office. 

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court this 8th day of September, A. 
D. 1858. 

[l. s.] W. H. Cheyers, Clerk. 


INDEX, 


AMADOR.141 

BOSTICK.159 

BRANHAM.152 

CHAYOYA. 81 

CIBRIAN. 88 

FERNANDEZ. 84 

GALINDO. 86 

HAYS.133 

HEALY. 90 

LA CROZE. 12 

LEWIS. I 

MATHEWSON.106 


MELONE... 151 

NARYAEZ. 88 

NORIEGA. 10 

PADILLA. 89 

RAN SOME.114 

RIOS. 15 

ROMERO....146 

SEPULYEDA. 81 

SNYDER. 11 

SUNOL.129 

YEATCH.125 

YON SCHMIDT.161 
































tlli-C-J 


' q* ■ _ 

cxy/y c o 
























Q • ^ 


i 




<2 '^ c ^~<- C^~ 

o^y 


































" h\(’M * 

y/wV4 ,/,/uvm-K ,/ 
















































/ Jfisio JIM 

~ . Depression/in which heaxL the. Arroyo Seco fc Zos CapvtanciZZos. 


















w 


* 













































































































library of congress 


0 002 963 620 5 





